The Dangerous Conservative Philosophies That Put People Behind Bars

Following Lynn Parramore’s piece on on solitary confinement, it’s important to note that criminal sentencing reform will be on the table in 2011. Collapsing state budgets and ever-increasing prison populations (and the costs associated with them) will force the issue. Republican Indiana Governor Mitch Daniels has recently endorsed a plan to help reduce the prison population.

As this issue unfolds, it is important to understand how we got here in the first place. First, having so much of our population behind bars is a new phenomenon, going back to 1980.

(Sources: one, two.)

The widespread acceptance of two strains of conservative thought have led to this. The first is the school of thought known as the incapacitation theory, a theory that says, in the words of James Q. Wilson: “Wicked people exist. Nothing avails except to set them apart from innocent people.”

The second is known as the broken windows theory, the idea that a neighborhood could be separated into orderly and disorderly people. As disorder sets in, orderly people flee or retrench from the neighborhood, and new disorderly people are emboldened to enter and take over. It also includes the idea that a police force doesn’t solve crimes but rather maintains order. In this vision, the police don’t investigate and present evidence to a prosecutor, who then presents evidence to a jury.

There’s an important rhetorical trick that the broken window ideology brought to the table, one that caught progressives off guard and brought in liberals hook, line, and sinker. As Bernard Harcourt has noted, it transforms the idea of offensive acts into harmful acts. Public drinking and loitering aren’t harms, but they are offensive to some. Broken windows allowed people to believe that offensive behavior leads to (by creating the potentials for and inevitability of) legal harms. It also became backwards compatible, allowing people to think that harmful acts were obviously preceded by an offensive act; criminalize and ruthlessly prosecute the offensive acts, and you can prevent the real harms from taking place.

It’s worth noting how broken windows, instead of acting as an alternative to incapacitation theory, acted as a supplement. But how did we get to incapacitation in the first place? In the law and economics approach of the Chicago School of Becker, Posner, Coase, etc. it is hard to balance the idea that crime is committed after an estimate of costs and benefits. Risking 30 years in prison to rob a store for $80 can’t really be squared away. So what the incapacitation school argued is that it can’t, unless you consider that criminals have a cognitive makeup that makes them impulsive and “present-orientated.” Wilson makes reference to this in his 1975 book “Thinking About Crime“: “Lower-class persons…immediate gratification…inclined to uninhibited, expressive conduct.” This is the idea that delayed gratification is an essential part of the social contract and that those who are incapable of it are likely to become disorderly and commit crime.

Here’s Edward C. Banfield, a professor of Urban Government at Harvard and the chairman of President Nixon’s task force on the Model Cities Program, who was a mentor to James Q. Wilson:

[T]he many traits that constitute a “patterning” are all consequences, indirect if not direct, of a time horizon that is characteristic of a class… The lower-class individual lives in the slum, which, to a greater or lesser extent, is an expression of his tastes and style of life… [T]he indifference (”apathy” if one prefers) of the lower-class person is such that he seldom makes even the simplest repairs to the place that he lives in. He is not troubled by dirt and dilapidation and he does not mind the inadequacy of public facilities such as schools, parks, hospital, and libraries; indeed, where such things exist he may destroy them by carelessness or even by vandalism… [T]he slum is specialized as [a site] for vice and for illicit commodities generally…