We are in the middle of a crisis. Yet, many of us don't even know it. When we give any thought to jails or prisons we tend to take them for granted as places to safely put away "bad people." We may notice the city or county jail as we walk or drive by, but how many of us ever go inside? On the drive past Portage on I-39 we may catch a glimpse of the maximum security Columbia Correctional Institution, a massive building with imposing guard towers built in 1986.
Perhaps you've seen the most impressive prison in the state; with ornate iron and masonry walls and towers, the Waupun Correctional Institution is listed as the Wisconsin State Prison Historic District with the National Register of Historic Places and described in prison studies as the "last of the great penitentiaries," a place whose architecture expresses its function as a symbol of punishment. Built in 1854 with 288 cells, with the addition of new buildings behind the walls and towers, 157 years later it is a wonder to behold—from the outside. Very few of us will ever see the inside or come to know the 1,242 men who live within the walls. To most, they are invisible.
For some communities in Wisconsin, however, prisons are more visible today than ever before. In recent years, small Wisconsin towns seeking economic growth have vied to have prisons built in their communities: The Supermax prison opened in Boscobel in 1999, followed by a medium security prison in Redgranite in 2001, and another in New Lisbon in 2004. In 2001, the State of Wisconsin purchased a prison in Stanley—then with a population of 1,898—from a for-profit corporate speculator who built it in partnership with the City of Stanley because they knew it would sell. Prisons, it seems, are good community investments.
Surrounded by razor wire and high walls, prisons announce that within are "dangerous people," yet the prison itself may be viewed as beneficial to the local economy. Of course, this paradox is only one of many at the heart of what we know by various names: incarceration, corrections, jail.
It's paradoxical elements such as these that shape and occasionally confuse our understanding of prisons, no less our ability to see them for what they are. Therefore, we are poorly equipped to comprehend or even acknowledge the widely quoted and thought-provoking report by the Pew Center on the States entitled, "One in 100: Behind Bars in America 2008." Significantly, the report outlines how not only does the United States hold more of our citizens behind bars than any other country in the world, but (in another form of our "exceptionalism") we also imprison the highest proportion of our adult population. Using comparisons from a range of sources, the United States, with an incarceration rate of 750 per 100,000 adults, has as its only rival the Russian Federation with 628 per 100,000. With a legal system similar to the United States, Great Britain's incarceration rate for their citizens is only 148 per 100,000. Denmark and Italy share the low rate of 67 per 100,000.
Perhaps the most interesting part of the report is not found in the comparison of American incarceration rates with the global community, but rather in tracing the enormous growth in the number of people in our prisons and jails over the last quarter-century.
So how did we get here?
While there are violent offenders and career criminals for whom there may be no other alternative than incarceration, the steep rise in incarceration rates can be linked to the expansion of what we know as the "War on Drugs." Although the War on Drugs in the U.S. was begun by President Richard Nixon in the early 1970s, the reaffirmation of this war and subsequent changes in sentencing during President Ronald Reagan's second administration in the mid-1980s, heralded the real beginning of our upward trend for incarceration. Allocating attendant resources and personnel, Reagan and his administration pushed for widening the scope of drug law enforcement and sharply increased the length of drug sentences, thereby bringing more people into prisons.
According to the Department of Corrections, in 1981 Wisconsin had 3,821 adults in prison. By 1999 the Wisconsin prison system held 18,940 inmates: in eighteen years we added almost five times the number of 1981 inmates to our correctional system.
By 2008, 23,380 of Wisconsin's adults were in prison, according to the "Prison Count 2010" report also issued by Pew, while another 3,025 were held in the Milwaukee County Jail according to the Bureau of Justice Statistics report from the following year.
To anyone looking at these numbers, it was becoming clear that the system couldn't support the rising flood of prisoners.
Faced with increasing populations and the high cost of building additional new prisons, the State of Wisconsin during this time period shipped about 4,000 of our prisoners out of state to for-profit, corporate-owned prisons in other states. (The Department of Corrections noted that in 1996 and the years following increasing numbers of prisoners were contracted out-of-state. In the December 29, 2000, population report the Department of Corrections listed 4,361 Wisconsin prisoners who were contracted to five prisons in Mississippi, Oklahoma, Tennessee, and Minnesota run by the for-profit Correctional Corporation of America.)
While this outsourcing of incarceration had ceased by the end of 2008 amidst cost concerns and questions of adequacy of prisoner treatment and control, Wisconsin was still left with the burden of holding about 6,000 prisoners beyond their buildings' designated capacities. This overflow of the prison system requiring the double-, even triple-occupancy of cells built for one. In some cases, dormitories were created from available spaces in the prisons.
Of course, Wisconsin was only one of many states facing this reality. As the Pew Report stressed, on any given day in 2008 almost 2.3 million adults—again, approximately one out of every one hundred—was behind bars. And, more often than not, these people were crowded into inadequate space.
"So what? So they were uncomfortable," some would say. "These are criminals, after all, and they weren't sent to prison to be coddled."
Placing aside for a moment the myriad decisions and influences that lead one to incarceration, some critical realities tend to emerge when we think about these people who are utterly at the whim of the corrections system. A good place to start is to consider the racial disparity concealed within the "One in 100." In America, it is one out of every fifteen black men who are behind bars.
Mark Mauer, director of the Sentencing Project, in his 2010 article on racial disparities in the criminal justice system for the American Bar Association's Human Rights noted that while 2005 surveys indicated that African Americans were about 14% of drug users, they were 33.9% of those arrested for drug offenses; more critically, they were 53% of those sent to prison for drugs.
In Wisconsin, just 6.3% of the population is black, but nearly half of all prison inmates are African American. It's a difficult fact to face.
In the process of exploring the presence of racial disparities in Wisconsin, UW-Madison sociology professor Pamela Oliver looked carefully at the county-level point where the dynamics of our justice system are most visible. In 2006 in Dane County, which has one of the highest rates of racial disparity, an estimated 32% of black men from the ages of 18-54 were under the control of the Department of Corrections.
The significance of the data has not been lost on lawyer-scholar Michelle Alexander, whose recent book The New Jim Crow: Mass Incarceration in the Age of Color Blindness (2010) makes a case for this kind of racial disparity in our contemporary corrections system as a new form of Jim Crow-type institutional segregation.
Considering gender adds another dimension to the "One in 100." While men are roughly ten times more likely to be in jails and prison than women, in recent years the number of women has increased significantly, too. Today one out of every 355 women aged 35-39 is imprisoned; within this number we find one of every 100 black women is now behind bars.
The number of women in our prisons is a complex expression of concern for both the care and control of women, reflected in an interwoven relationship between the caring for women through welfare agencies and their control through incarceration. For evidence of this, one need not look far. Earlier in its history, the Wisconsin Prison for Women at Taycheedah held the benevolent name, the Wisconsin Home for Women (African American women are about 29% of the population at Taycheedah).
Beyond the reality of the large numbers of our men and women behind bars, a wider network of control exists. In 2009 the Pew Center published a study much less widely quoted than their "One in 100" report,"One in 31: The Long Reach of American Corrections." The figures from the new study, using 2007 data, add another invisible population of five million adults who are sentenced to prison but living in the community under forms of probation and parole. It's startling to realize that one of every thirty-one of our citizens is under some form of correctional control by the state. Even more startling is that this situation developed within the last twenty-five years, during a period of political decisions to "get tough on crime."
This tough-on-crime approach was reflected in three major legislative efforts. The first was the expansion of the War on Drugs during the 1980s with federal legislation adding long mandatory sentences for drug offenses. Within this enhanced sentencing structure, however, was an odd disparity: those caught with only five grams of crack cocaine often received the same five-year sentence that came with five-hundred grams of powder cocaine. While both forms of cocaine are undoubtedly addictive, those in possession of the inexpensive crack form used more widely in poorer communities often found themselves in jail for substantial sentences where those arrested for powder cocaine often received lesser punishment.
Recently recognizing this disparity, the U.S. Sentencing Commission unanimously voted on June 30, 2011, to "bring 'unfairly long sentences' for crack offenders, mostly African Americans, more in line with the shorter terms given to powder cocaine offenders, often white and sometimes affluent." When the reductions go into effect in November 2011, the average crack sentence will be cut by about 37 months, and the federal Bureau of Prisoners said the reductions could save more than $200 million in the next five years. Nearly 6% of the federal inmate population could be released under this change in legislation. These hopeful measures, however, should be taken with a grain of salt as retroactive reductions recommended by the Sentencing Commission must be approved by Congress by November 1 and federal judges must approve applications for reduced sentences.
The second effort was the widespread enactment by state legislatures of Three Strikes Laws, requiring twenty-five year to lifetime sentences after a conviction for three felonies, that occurred after California's 1994 well-publicized legislation. Wisconsin followed with a modified form of this law.
The third major legislative effort was the provision in 1994 of federal support for state legislatures to pass Truth in Sentencing laws. States that adopted such laws could receive federal funds to facilitate the additional prison construction needed to ensure that serious offenders serve 85% of their sentences behind bars. The offer was too good to refuse: More federal money for the states, more construction and subsequent employment for communities that hosted new prisons, and longer sentences for criminals, keeping them off the streets. Truth in Sentencing legislation was passed in Wisconsin in 1998.
One of the basic assumptions of these tough-on-crime policies was increasing the number of criminals in prison and lengthening their sentences would reduce crime and increase public safety. On the surface, the decreasing crime rates over the last three decades reported in the FBI's Uniform Crime Report would seem to confirm this assumption.
However, closer analysis, summarized in the Sentencing Project's 2005 report "Incarceration and Crime: A Complex Relationship," reveals other factors beyond incarceration that influence crime rates, including levels of law enforcement, economic trends, as well as other social factors. Only limited decreases in serious crime can be attributed to this rapid increase of incarceration, which has been largely driven by the differential incarceration of drug offenders.
Ironically, in the hidden world of illegal drugs, studies have found the imprisonment of a single drug offender (dealer) simply leads to the replacement by another in the drug market. As criminologist Alfred Blumstein notes, "drug markets are inherently demand driven. As long as the demand is there, a supply network will emerge to satisfy that demand."
The result of tough-on-crime policies has been the major growth of the number of citizens under correctional control, mounting costs in building and maintaining penal systems, and human costs not only for the incarcerated but for their families and the larger community as well.
The effect of these legislative changes can be seen in real numbers. According to the Pew Center's 2009 "One in 31" report, in Wisconsin about one out of every 39 of our adults was in some way under the correctional control of county, state, or federal governments by the end of 2007. One in 109 adults, or 39,360 persons were truly invisible: 13,931 held behind the walls of our local jails, 23,028 incarcerated in Wisconsin's thirty-six prisons and correctional centers, and 2,401 under lock and key in Wisconsin's single federal prison. Over 71,282 people—or one in sixty adults—lived among us in the community under probation, parole, or extended supervision. For each of them, the invisible hand of the state or federal correctional systems was a constant reminder of their possible re-incarceration.
The Pew Center's "One in 31" report stressed the enormous cost of these decisions, pointing out that corrections has become one of the fastest expanding major segment of state budgets, annually topping $50 billion nationally.
The cost of this correctional control by the State of Wisconsin was reported in the Pew study as $1.08 billion in 2008, without including our local jails. In 2007 Wisconsin's General Fund spending for higher education was $1.21 billion, and the report also noted 14% of Wisconsin's state employees worked in corrections. In 2011-13 the published budget for the Wisconsin Department of Corrections is $1.2 billion, topping the gradually decreasing budgeted state support for public higher education.
These numbers mask the very real human costs for those involved in our expanding systems of correctional control, which extends far beyond the actual sentence. The convicted felon may never again vote. Felons might also face legal restrictions on employment, housing, and educational funding. Perceptions can be easily shaped by media portrayals of dangerous criminals in our midst and by political calls for public safety combined with a belief in the positive textbook descriptions of the workings of our legal system.
A recent New York Times article by Erica Goode noted a call in state legislatures for the implementation of online registries, like those used to track sex offenders, for people convicted of crimes ranging "from arson and drunken driving to methamphetamine manufacturing and animal abuse." It was argued that "people have a right to know about potentially dangerous offenders in their midst, and that the benefit of alerting parents, neighbors, and others in a community outweigh any privacy concerns."
But it isn't just the privacy of "dangerous offenders" at stake with these types of policies. The incarceration of almost 2.3 million Americans (using the latest 2009 figures) has reverberations that shape many more lives than the offenders. I have a vivid memory of a very elderly couple shakily making their way through the metal detector at the maximum-security Columbia Correctional Institution. They were there to visit their son under the eyes of the correctional officers, who obviously knew these faithful parents. Too, I remember watching an older sister carefully putting a very young baby into her mother's arms in the visiting room of Wisconsin's prison for women at Taycheedah. The mother had earlier given birth in the Fond du Lac hospital and was returned to the prison without her newborn child.
We are often unaware of how many of our neighbors have friends or family members in prison. For many it is a secret that they'd rather not share.
The consequences of this increase in correctional control of so many of us tend to be invisible until these realities become personally experienced. A warden (and later head of a state department of corrections), from his years of experience in this world of tension, violence, fear, crowding, shackles and strip searches, once told me his goal had simply become one of making prison—for both inmates and staff— "the least destructive as possible for the human spirit."
The United States, grounded in the beliefs of the Declaration of Independence and a legal system based on the U.S. Constitution and the Bill of Rights, is now faced with the paradox of having the highest proportion of our citizens in prison of any other major nation of the world. The massive growth of our penal system in these last twenty-five years has resulted in financial costs that are becoming unsustainable in a weakening economy. Rather than potential places for change, overcrowded prisons have become warehouses where the basic human needs of the imprisoned are threatened.
The consequences of this paradox are reflected in the recent United States Supreme Court's 5-4 decision in Brown v. Plata on May 23, 2011, with scathing dissents by Scalia and Alito, questioning the right of the Supreme Court to intervene in matters of prison administration. In response to massive overcrowding in the California prisons, along within the financial inability of the state to provide adequate health care and humane living conditions for prisoners, the Court agreed with a lower court decision that the overcrowding must be relieved by reducing the number of prisoners. The decision read as follows:
As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. … To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. … A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.
It's important to note that while the Court asserts the present overcrowding and the financial impossibility of providing adequately for the needs of the prisoners violates "the essence of human dignity" and represents a cruel and unusual punishment, it does not question the legitimacy of depriving prisoners of some basic rights fundamental to liberty. Indeed, the ruling underscores the relationship of total dependency by a prisoner "on the State for food, clothing, and necessary medical care."
In the eyes of the our country's highest court it seems the resolution to the problem of incarceration is found in lessening the burden on overcrowded prisons, rather than in raising the question of the fundamental nature of imprisonment and "the concept of human dignity" in a civilized society. Is this the best we can do in the home of the free and land of the brave?
Crime and punishment is a tremendously complex issue. The Sentencing Reform Act of 1984, for example, struggled through several Congresses and endless revisions and complications and contradictions before it became a rather confusing law—nine years after it was introduced. Seemingly simple questions of how to protect the public safety and what form punishment should take invariably reveal themselves to have multiple, interlaced layers. These layers include not only practical realities such as costs and effectiveness but also the emotions and beliefs—informed or not—that arise from class, race, education, and political and religious affiliations of the debaters. Too often the discussion that begins with facts and research data quickly is buried in the emotional and cultural baggage that is our history—both personal and national.
Perhaps a good approach to the crisis before us is for citizens to take a good, hard look at prisons. To understand how we have lived with paradox at the heart of our penal system in the United States requires an honest examination of the conflicted racial and cultural history that has shaped imprisonment in America as well as a bold exploration of alternatives to punishment by incarceration.