Robert Perkinson is the author of "Texas Tough: The Rise of a Prison Empire," a history of American punishment that focuses on the country’s most incarcerated and politically influential state,[…]
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A conversation with the author of “Texas Tough: The Rise of a Prison Empire.”
Question: How has racism factored into your study of the penal system?
Robert Perkinson: I think they are entwined in ways that we haven’t fully appreciated. We’ve seen over the past two generations, really you know breathtaking progress in terms of civil rights. My grandparents on my mom’s side are from Mississippi. Their parents were involved in... my great-grandfather was involved in driving the blacks out of a little county in Mississippi, and my 90-something year old grandmother pushed her walker down to vote for Obama in the fall of 2008, and that was stunning for her. I mean something she couldn’t have imagined for most of her life. But, you know, over the same period of tremendous progress, we’ve seen measurable disparities along racial lines and criminal justice worsen.
It used to be that the prison population in the United States was mostly white, now it’s mostly black and Latino. Before desegregation, the rate African-Americans were going to prison at roughly the rate of four times the rate of whites, now they’re roughly going to prison at the rate of seven times the rate of whites. So, it’s a huge contradiction in what’s happened in American race relations and that’s something that civil rights organizations and the media and public policymakers have not been paying attention to.
Question: Why has the racial disparity in prisons become so drastic?
Robert Perkinson: I mean, like everything in our inchoate criminal justice system, it’s difficult to disentangle all of the variables. There is certainly intentional bias in racial profiling by police, in the ways that judges regard certain defendants, even in the ways that probably Public Defenders and certainly Prosecutors and Juries do, and Parole Boards. So, the role of intentional discrimination shouldn’t be minimized. It’s still present with us even in the post-civil rights era. But there are a lot of other factors as well. You can’t very well disentangle it from poverty, educational attainment, urban density, white flight and capital flight out of central urban areas where crime, and even more than crime, incarceration has been most concentrated.
And then too, it is also important for people to know that there is all sorts of ways that race has—that racial divisions have worsened in criminal justice in unanticipated, unintentional ways. Just one example, in the ‘90’s all sorts of legislatures passed laws to enhance penalties if you sell drugs near a school... say 200 yards, 2,000 yards from a school. Well, it turns out that in rural areas, almost every place you might sell drugs is more than 2,000 yards from a school. In the Bronx, or dense parts of Los Angeles, or Washington D.C., every place on the map is within 200 yards of a school or almost, and that means that all defendants who are getting charged with drug crimes in that area, whether school kids were involved or not, are getting those enhanced penalties. Whereas, the meth dealer in rural Nebraska gets a comparatively lighter sentence. And that’s had a big, big racial impact.
Crack cocaine is less—even the racial disparities caused by the differences in sentencing for crack versus powdered cocaine. And we now know these two drugs are identical, pharmacologically. That’s had an even more dramatic racial impact.
Question: Why is it important to talk about race when we talk about incarceration?
Robert Perkinson: There are a lot of criminal justice advocacy organizations that are not sure whether it’s a good idea to stress race. It could be a divisive, could cut into our ability to put together large coalitions as we are trying to reverse some of the prison growth and severity that has accumulated over the past 40 years, but I think in order to really turn in a new direction and to move out of a policy regime that has had such transformative effects, not just in criminal justice, but in urban communities and social welfare policy and just social stratification in the United States generally, that you have to really honestly recon with the causes and there are a lot of scholars who proposed all sorts of reasons for why the U.S. has built this exceptionally large system, and I think the change in racial politics is really the only thing that can explain it fully. Or that we need to think of that central causative variable. I mean to put it a little too simply, what I think happened is a kind of echo of what happened at the end of Reconstruction, when conservatives, white supremacists in that case were able to kind of roll back the expanded freedom after emancipation and install piecemeal, Jim Crow segregation, which then ruled the states of the former Confederacy in a kind of state of sort of quasi-freedom for another century.
And segregationists—conservative segregationist Democrats, originally, like Strom Thurmond in the ‘50’s when the civil rights movement was getting rolling, they seized upon crime as one of their oppositional ways of building opposition to desegregation and Strom Thurmond famously warned that there will be a wave of terror and crime and juvenile delinquency if integration of the races goes through. And when integration of the races did go through over their objections and those Southern conservatives were defeated, they retreated to criminal justice as a way—and law enforcement, in particular, as a way to kind of police this incipient social order that they feared and had fought against.
And so the very jurisdictions I found that had fought against desegregation most vociferously have become the nation’s most vigorous jailers. And it’s sort of as if we’ve institutionalized the view of Texas’ U.S. Senator Joseph Bailey who once said that, “Hey, I want to treat the negro fairly as long as he behaves himself. And if he doesn’t, I want to drive him from this country.” And in essence, the United States has done that. We have, in a sense, banished a generation of urban youth to a series of carceral institutions and it’s disproportionately those... you know, there’s people in the middle class who achieve higher levels of educational attainment and income in the African-American community who are not experiencing these disproportionate levels of incarceration, although they are more likely to get stopped by police and so on, but it really is most concentrated among the urban poor.
So, for example, young black men in America who don’t graduate from high school, 60% of them end up in prison. That’s more than join the armed forces, or go to college. It really has become a central stage of life for a whole generation of American youth. And that really has, to the extent that the Civil Rights Movement was about expanding opportunities, making life better for African-Americans, making the United States generally a pluralist democracy, criminal justice has to a significant, if in the mainstream media, under-emphasized extent, rolled back many of the gains of the Civil Rights Movement.
Question: Is there a sense of inevitability about prison among African-Americans?
Robert Perkinson: Certainly, there’s a lot of familiarity in certain neighborhoods across the United States with imprisonment. One in nine African-American kids goes to sleep every night with one parent in prison. One danger some educators worry about, is yeah, by talking about these statistics that shows so many young black men and a lot of black women too, although not in the kind of same percentages, are ending up in prison, especially for drug crimes, that they will feel or develop a kind of nihilistic sense of the future. I hope that is not the case. You know, there is a lot of critique of the criminal justice system in hip-hop music, for instance. It does have the effect of surely making people distrustful toward the government, distrustful toward law enforcement. We see that in some kind of jury nullification and Washington D.C. and the anti-snitching campaign in Baltimore, and so on. So in that sense, it actually, by having such a racially disproportionate impact of criminal justice policies we can actually undermine law and order and public safety. But I don’t think there are cultural factors that lead to greater law breaking once you... there higher rates of arrest among African-Americans than among whites, there is no doubt about that. But once you factor out education, history of child abuse, the family dynamics, poverty—and there are a lot of those variables; you can’t just take out one and explain it—you find that there are all sorts of socially determining factors rather than any sort of racial, cultural pathology I think.
Question: Why have incarceration rates skyrocketed in recent years?
Robert Perkinson: There’s a lot of reasons. I think it’s a momentous shift in American history, and it’s really a divergence... a place where the U.S. diverged from Europe and other industrial democracies. You know, incarceration rates in most democracies are pretty stable and were for most of American history. But starting in the late 1960’s, the U.S. changed course pretty radically and incarceration rates quintupled over the last third of the 20th century.
Conventional wisdom is that it must have something to do with crime. Turns out it doesn’t. Crime rates fluctuate pretty much independent of or largely independent of incarceration rates and what I argue in the book is that it really has to do with politics, and in particular it has to do with racial politics.
Question: Have tough-on-crime rhetoric and sentencing guidelines affected incarceration rates?
Robert Perkinson: What I’m arguing is like the big causative shift has to do with the backlash against civil rights and the kind of Southern strategy in the way Democrats have tried to protect their right flank by throwing criminal defendants to the wolves in a sense. But there’s all sorts of legislative initiatives that have gone through that have made that happen. And certainly sentencing guidelines have had the unintended consequence of shifting discretionary... shifting discretion from judges to prosecutors, because almost all cases are dealt with and plea bargains and it’s meant that the real decision on how much time someone is going to do takes place at filing, rather than in a court room. And even more than that, mandatory minimums.
But there’s all sorts of, you know, every legislative session from the 1970’s forward has had, in every state almost and in the federal government have had different kind of foci and different slogans, “Zero Tolerance,” “Mandatory Minimums,” “Three Strikes.” All of them have converged to build the largest prison system in the world.
Question: How have for-profit prisons changed the way we incarcerate people?
Robert Perkinson: They have some. My own sense is not as much as some critics of the so-called "prison industrial complex" think. You know, Texas locks up more people in private prisons than anywhere else; there’s 20,000 of them. My own state where I am now living in, Hawai'i, ships a huge part of its population to private prisons on the mainland to the desert prison in Arizona and it’s mostly indigenous Hawai'ians there who are bearing the brunt of the drug war and that kind of war on crime. And those private prison companies are skilled lobbyists. They often hire former bureaucrats, former legislators, former lieutenant governors to make their case. And I think in some cases, they have... in many cases they have argued for longer sentences and tougher law enforcement as a way to generate demand for their services. But I don’t think you can—and they’ve done that successfully. So some small extent of breathtaking prison growth in America can probably be attributed to the profit motive. There’s even more money to be made in construction contracts for new prisons. But there’s a whole lot of ways that private industry can feed at the trough of government. And I don’t know that prison lobbyists are any more effective than road contractors or even people who could build community colleges if government were going in a different direction.
And also, some states have very high rates of prison growth—California, for instance—with no private industry because the guard union there is so powerful and so effective that they are well paid compared to correction officers across the rest of the country, and they have thus far, though we’ll see what happens in the next few months, been able to avoid much privatization.
Question: Why did you focus your research on Texas prisons specifically?
Robert Perkinson: Well, my family is from the South and when I went to grad school at Yale and decided to start working on prisons because as an undergrad, I had noticed you know, there’s all this money going into prisons and we’re starting at that time already to eclipse higher education spending in many states. But when I started kind of going through the literature I realized that almost all of the books were really focusing on the north, there were a lot of new books and research that were coming out of California, but the South is really where the action was. Three-fifths of the prison growth in the U.S. in the last 30 years has been in the South. The South overwhelmingly and to a lesser extent the Sun Belt, has the highest rates of incarceration in the country and there hadn’t been much attention there.
So I went down to my own state where I spent a lot of time, Mississippi, and thought about doing research there and then I spent time at the Angola Prison Plantation in Louisiana, but the more I started poking around, the more I realized that Texas is really where the action is. You know, just like if you were going to do film studies you were probably going to end up in Hollywood, or study finance you’re going to end up in New York.
Texas has now the largest penal system in the United States, 171,000 people behind bars. That’s more than California, even though California has a third larger population. Those under some sort of criminal justice supervision, including parole and probation, that gets up around 750,000 in Texas, which makes it about the same size as the booming capital, Austin. It’s got obviously the most active death chamber in the nation, the most aggressive private prison industry. Texas is also politically really important because Bush the second was President when I started this project and a lot of recent Presidents have come from Texas; Eisenhower and Johnson and both Bushes.
So, I felt that Texas was a place where we can see the Southern influence of criminal justice on the nation because it’s a kind of bridge between the Deep South and the West and the Midwest. And it really was where the action was. And I think it was the right place to look because I think looking carefully at the history of Texas kind of makes us rethink the history of crime and punishment and incarceration in the country as a whole.
Question: What about Texas is causing such high incarceration rates?
Robert Perkinson: Yeah, the sentences tend to be longer, the protections for indigent defendants so on the entry side, tend to be weaker. Texas has, although that’s starting to change now, but there’s no state-wide public defender system, so most of the public defenders are appointed by judges. And they’re paid a kind of set amount for the case, which means that the less work they do on behalf of a defendant the more they will make as an hourly wage. There’s all sorts of court-appointed attorneys who are doing... working really hard, but they are penalized for doing so. And the judges are also elected in Texas which has meant that in the kind of resurgence of conservatism that has seized on law and order as central campaign slogan and as candidates from Bush the first using Willie Horton against Dukakis forward have found that attack ads based on accusing someone of being soft on crime are pretty effective. It’s meant that most of the judges elected to the criminal appellate courts and to the local courts have been law and order conservatives—often prosecutors or victim’s rights advocates and so the judiciary in Texas has more often wielded a rubber stamp than a gavel. So that accounts for some of the higher rates of incarceration. And that explains a lot of why Texas’ death chamber is so much more active.
Texas doesn’t have the largest death row. It’s not sentencing more people to death, although there are a lot of people being sentenced to death because they are not getting good representation... but the Appellate Courts are so harsh in Texas. So much so that even the U.S. Supreme Court, which is now a very conservative body, has repeatedly over the last few years been rebuking the Texas Court of Criminal Appeals. I mean, they’ve made decisions that, to the rest of us seem unfathomable. They allowed an execution to go forward because, without review, because the defense attorneys missed a 5:00 p.m. filing deadline. They refused to release inmates who have been proven twice innocent by DNA evidence. Just a couple of weeks ago the Supreme Court had to step in and stop the execution of Hank Skinner because the prosecutors had refused for years to subject the physical evidence from his crime scene to DNA testing and the list kind of... they refused to order new trials when they found out that the judge and the prosecutor had been sleeping together during the defendant’s trial. So, there’s a whole series of kind of outrageous decisions.
So, it’s a confluence of factors, but what I didn’t get to and maybe we’ll talk about later is what I really actually argue in the book is more that there is this historical legacy of slavery and that we still live within slavery and segregation’s shadow in that really is what is governing and propelling prison growth in the south, and now in the country as a whole
Question: How has DNA testing affected the justice system in Texas?
Robert Perkinson: DNA testing has led to a kind of crisis in the judiciary because—if it’s done properly—which is often isn’t... I mean, the crime labs in Dallas and Houston have been plagued by error and prosecutorial bias... But if the labs are independent and fair, and the training is solid and they’re independent, then the results are so good that it has made us realize that types of testimony—types of evidence that we thought were unassailable, like eyewitness testimony in rape cases, in which the victims with great conviction believe that the person before them was the assailant, it has turned out in many cases that they were wrong. And there’s a lot of cognitive research now to back this up that we can kind of plant memories or change memories through the process of the lineup and so on.
So yeah, the more that we can—the more that we can provide defendants in cases which there is physical evidence the best kind of testing to ensure the most fairness, that’s better. And that’s a way to reduce, frankly the prison population and to save money in the long-term as well. I mean, I think having a robust public defender system, having a genuinely adversarial criminal justice system that will... on the one hand, stop people from going to prison, but also there’s a much larger category of gray areas where people are going down for, or pleading to sentences that are much longer than they would have gotten even if they were guilty, had all the investigative and mitigating factors come to the fore with adequate defense representation. That’s a way to reduce the prison population and it’s a way to do it in such a way that it might not entail as much political peril as some early release programs, if they’re not done carefully because that always of course will generate some portion of ghastly headlines.
Question: Why does Texas execute so many people?
Robert Perkinson: That has to do, I think primarily with the way that both indigent defense is handled in Texas and the Appellate Courts are organized. Indigent defense is court appointed rather than a public defender system, although there have been some improvements in the last couple of years. But court-appointed attorneys in Harris County, which is the death penalty epicenter of the United States, they don’t have their own evidence budgets, they don’t have salaries. They are penalized economically if they work really hard on a case, and so there’s a kind of assembly-line quality to the convictions. And then worse, the elected judges at the appellate level have let all sorts of cases go through. And indeed, we have now pretty much irrefutable evidence that Texas, in recent years, with all of the criminal procedure improvements since the Warren and the Berger courts that have been executed were innocent. Notably, Cameron Todd Willingham, who was one of my research subjects and we corresponded for a long time. He was profiled in The New Yorker.
I myself, I must confess, because I have young children and he was convicted of burning alive his two daughters in order to collect insurance money. I always felt a little queasy corresponding with him. I never really believed his constant professions of innocence, but luckily somebody did start looking into it and once they hired minimally competent arson investigators to go over the physical evidence, and once they had people go back and look at the witness testimony when they were first interviewed by police, versus what they said on the stand, they were able to show that, A) there’s no evidence of arson whatsoever, B) there’s no serious motive—the insurance settlement was paltry. And all of the kind of evidence of him being kind of dangerous was also dubious and generated by prosecutorial coaching. And everybody who has looked at that case is now convinced that Willingham was innocent.
The Texas Forensic Science Commission was about to, a couple of months ago, declare that he had been wrongly executed. Governor Ryan, in Illinois, when this happened under watch, to his credit, he was a pro-death penalty Republican, he was so troubled by the prospect of executing innocents that he vacated death row in order to really high level investigation of the entire death row, and it resulted in a lot more exonerations. And he commuted a lot of those sentences to life in prison, and some less, and some people walked free.
Governor Perry, longest serving Governor in Texas history, executed under his watch, more people than any other Governor quite possibly in American history. He took a different approach. When the evidence became clear that an innocent person had been executed under his watch, he fired the members of the Forensic Science Commission and replaced it with his cronies such that the truth would be squashed. And that’s kind of a—that’s a pattern of his in the past is to pursue policy ideologically based and to ignore truth and evidence.
Question: Is the American penal system still based on the idea of rehabilitation?
Robert Perkinson: No, that’s a huge shift. For 200 years since the birth of the Northeastern Penitentiary, the stated purpose of incarceration—if not the reality, mind you—was to grab hold of wayward citizens who had done wrong and to intervene in their lives in such a way that they would come out the other side of incarceration better than they had entered. Now, this never really worked out. It was never really attempted to the full extent. But because that was the stated purpose and because there was a kind of higher calling, in theory to corrections, it kind of mitigated the extent to which vengeance and neglect and retribution could dominate the correctional experience.
But that really has changed in the last 40 years. Rehabilitation, which reached it’s zenith under the federal system and the California system in the ‘60’s came under attack by the left and more aggressively under attack from the right and has really been squashed such that the purpose we have now for imprisoning so many people is on much more shaky ground, philosophically. It’s to incapacitate people from committing crimes. We say it’s for deterrence, but the evidence for deterrence is extremely weak. People are deterred by the presence of car alarms or police. But, you know, before a drug addict breaks into your car to steal your stereo, they do not consult sentencing schedules to find out of the penalty in Maryland is harsher than the penalty in Virginia. And it’s silly of us to think that that would happen. The death penalty also doesn’t work as a deterrent. So, it’s really incapacitation, but that’s a very expensive way to prevent crime and help public safety and it doesn’t work very well.
What the collapse of... for me in my work, with the collapse of the rehabilitative claim and the collapse of "corrections" as a framework for thinking about incarceration has done has really brought into clear review an alternative tradition of American punishment. Not a tradition that has it’s genesis in Northern churches and Quaker meeting houses and genteel reform movements, as is the traditional story told about the North—and as a traditional story you’ll find in almost any history book about prisons. But an alternative genealogy comes into view that really stretches back through racially divisive politics, and it stretches back to segregation, it stretches back to convict leasing the totally privatized incredibly brutal prison system that took root in the South after the Civil War and stretches ultimately back to slavery—and that’s a tradition of intentional debasement, public vengeance, exploitation of labor, and racial control. And in many ways, that, sadly, is the genealogy I think that gives us a more accurate sense of where we have ended up in the present than the trappings of rehabilitation that have dominated the historical literature.
Question: What can we do as a society to reduce the number of people in prison?
Robert Perkinson: What we have done of course is the opposite. In a sense, 40 years ago it’s as if we sat down and thought, okay, we have this problem of crime and crime was going up in the 1960’s, let’s figure out the most expensive, most ineffective way to deal with crime that will produce the most kind of social stratification and collateral damage, and will undo a lot of the progress that’s going on towards civil rights. No one sat around and did that at the time, not even the hardest hardliners. But that is in effect what we have done.
For 40 years we have legislated by headline. We have legislated by fear and campaign announcement. We have not governed in the interest of effective public policy, but we have let partisanship trump common sense. And we’ve been very tough on crime, but not very smart on crime at all. And it’s going to take a lot of effort to undo it, but I think you’re exactly right. What needs to happen is we need to have as a central goal, not just try to make conditions of confinement more humane, or help people who are released from prison – there’s like 750,000 people a year who get out of prison, they’re tossed out on the street with stigma, without money, angrier and more alienated then they were before. They didn’t get much treatment behind bars, so there’s a lot of emphasis on re-entry right now, as well there should be.
But in my view there really has to be an emphasis on reduction of this out-of-control, bloated government bureaucracy that is causing, and it’s like other types of government waste. I mean if we have a contract to build a highway and it gets double-billed... or air marshals—take air marshals for example, which it seems like now that the evidence is in has been totally useless government program. They haven’t committed any crime; there’s been an average of four arrests a year. But it’s relatively benign. People get jobs, no one really is harmed by it and maybe there’s a little bit of public safety, so it’s more or less – it’s wasteful, it’s irresponsible use of taxpayer money, but it’s not harming anyone.
Prison is very different. It actually is most – people think that it is responsible for maybe for 10% to 20% of reducing crime in the United States. There are many better cost-effective ways to reduce crime. And we haven’t done them, and we need to start changing direction. There are signs that that’s happening. And there needs to be changes at every level of the system. We need better indigent defense, we need fairer trials, we need a shift in our approach to addiction, toward thinking about it as a medical problem entwined with a crime and poverty problem, rather than as a solely criminal justice issue. We need to think about better ways to let people out of prison, especially as they pass beyond their criminal prime.
There is a promising piece of legislation in Congress right now that Senator Webb of Virginia is pushing to create a national criminal justice commission to look at the whole U.S. criminal justice system, especially the federal, but also in the states. At every stage, from arrest to parole, and to bring together experts from across disciplines and perspectives and to try to actually, for the first time in 40 years, look at this problem in a sober-minded way rather than in a partisan, divisive way. And that hasn’t happened since President Johnson’s crime commission in 1967, which, if you go back and dust that off, is a pretty great document. They had a whole laundry list of reforms. The prison population was 300,000 in their day and they thought that was too high. They had a whole series of recommendations for enhancing public safety by preventing child abuse with more effective policing, with better public housing, with afterschool programs, as well as more effective law enforcement techniques, and a better targeting of our criminal justice resources, which are so disproportionately devoted to drug crimes right now and not toward the crimes we really tend to be afraid of. So I think that's promising.
But in order for us to undo 40 years of warring on crime and 40 years of warring on drugs, it’s going to take a lot more than this sort of budget-driven minor reforms that many of the states are undertaking now. And I think it’s going to take leadership from President Obama and Congress to make this an issue on par with health care or banking reform. And it really should be. I mean, in President Obama’s inaugural address, he said that we want to carry this great gift of freedom that American’s have carried over the course of our history, or at least tried to carry through the better chapters of our history and deliver it safely to future generations. We cannot do that. We cannot carry the torch of freedom into the 21st century with having built the free world’s version of the Gulag... with 2.4 million Americans behind bars with more than a million African-Americans having lost the vote, it fundamentally undermines our claims to democratic leadership in the same way segregation did during the cold war and the same way I believe that slavery was the great contradiction to the founding of the American democratic experiment.
Question: Why has crime, generally, declined over the past 20 years?
Robert Perkinson: We have seen a historic decline in crime all through the 1990’s. It has not yet in a very significant way picked up with this recession. We’ve seen, and this is very important for people to realize, crime rates in some cases drop more steeply in states that have not incarcerated such huge portions of their populations. One of the steepest declines has been in New York City, which has sent a whole lot of people to jail on Rockefeller drug laws, but nothing like the South. And yet crime in New York has fallen much more steeply then in Houston or Dallas. So the crime drop is a great riddle for social scientists to figure out, but critically, at least I think it’s important for people to know that the massive growth of incarceration is, we think, not one of the largest determining factors in decreasing that crime. Incarceration has been going up straight since the 1970’s.
In some of the periods incarceration has been going up crime has been going up, other times down. But there is not a clear correlation between incarceration and protecting the public. In fact, one of the statistics you would think you would have gotten if you believe in a kind of weak version of deterrence, you would think that all of these harsher penalties would at least deter some of the people who know the criminal justice system best—criminals and former prisoners—from committing crimes. Because they do become, even if their levels of education attainment are somewhat limited, through being cranked through the criminal justice system, they learn a lot of the criminal law and they know the penalties are very harsh. So if deterrence were to work and if imprisonment was an effective way to deal with crime, you would think that recidivism rates in the United States would be lower now than they were when the prison boom began, when penalties were comparably more mild. Instead, the opposite has occurred, recidivism rates have gone up. One more piece of evidence that shows this experiment in mass incarceration has been one the one hand a total failure in terms of protecting the public. On the other hand a catastrophe for the weakest members of our... the most vulnerable members of our society, including those who are more victimized by crime. That’s also in the poor neighborhoods. It hasn’t helped them in any way. Their people are getting shipped off to rural prisons and then those rural prisons are getting the census money and so on, and they are still suffering high rates of crime. So, it’s a mess, I’m afraid.
Question: Is the monetary cost of incarceration less than the cost of crime?
Robert Perkinson: People have tried. It’s harder to do than people have claimed. Some economists have said, well even if you are spending $50,000 a year to lock someone up, as is the price in California where the corrections officers are well paid, because that person you are putting behind bars would have committed ‘X’ number of crimes, then you’re actually saving money. But those studies kind of fall apart for a whole series of reasons. They’re based on surveys of certain classes of criminals that don’t correlate very well to who is actually in prison. They don’t take into account the ways that crime can’t just be thought of as a subtraction from the economy. I mean as strange as it sounds... If I steal $100 from you, that doesn’t decrease the GDP of the United States, that just means that I have $100 to spend and generate economic activity and you don’t. So, it’s not a subtraction, it’s not a cost to society, it’s a cost to you. It’s not a cost to society.
So those studies don’t hold up very well. I mean, it’s true that I think, you know, that incarceration is not something that we’re going to be able to get rid of entirely. There are people who are extremely dangerous. A very small portion, it’s important to realize. We think that prison beds are filled with dangerous sexual predators and armed robbers and serial killers because that’s how it seems watching the nightly news. That’s not the case. Most people going into prison are non-violent offenders in a given year, and most of them are drug offenders, or are hooked on alcohol and so on.
Question: Why are people beginning to take the issue of prison rape more seriously?
Robert Perkinson: Well, there’s so many people in prison that sexual victimization in prison now has come to constitute a significant portion of the sexual victimizations in the society as a whole. Human Rights Watch and some of the human rights organizations have really began in the late ‘90’s documenting the incredibly high rates of sexual assault. Which was not new. If you go back and look at the very economical cost-effective regimented system that Texas was able to perfect over the course of the 20th century, based on convict guards. A lot of the ways those guards were in a sense compensated was by officers turning a blind eye to their sexual victimization of "punks," so-called "punks" in prison. So, sexual assault has been endemic and often a tool of... a tool of subjugation in prisons for a long time, but it has gotten a lot more attention.
And under the Bush Administration—to the Bush Administration’s credit—they signed legislation to kind of conduct a lot more research into sexual victimization and so we’re getting a lot better data on that now, and I think because the data is now available, some corrections officers are starting to take it more seriously and therefore when victims, or would-be victims, are in a compromising situation we are beginning to have a system in which they feel like they can go to the authorities and seek protection and receive redress. But we are, frankly, a long way from that.
And there is, of course, a public health component to this as well to both coerced sex and consensual sex in prison, and that is that another way that mass imprisonment is adversely affecting the public is that they have become incubators of public health problems. They’ve become incubators of hepatitis B; they’ve become incubators of HIV and antibiotic-resistant tuberculosis. And of course all of that has consequences beyond prison walls. It’s yet another reason to try to use incarceration as a penalty of last resort than a penalty of first resort, as we have started doing in recent years.
Question: Are public attitudes about imprisonment changing?
Robert Perkinson: I don’t know if we have seen a change in the public mindset yet. We have seen a leveling off of the prison population in the last few years. We have seen a lot of states start to mitigate some of the harsh steps they’ve taken over the past two generations. Texas has rolled back partially the Rockefeller Drug Laws, California, facing bankruptcy, is struggling to release 40,000 inmates in order to comply with Federal Court Orders. A lot of states are trying to figure out how to save money, because of the budget crisis, by downsizing these resource-devouring bureaucracies that they’ve built. But I don’t know if we have yet see a shift in public attitudes. That will probably take... in come ways there’s evidence that the harsh public attitudes have been driven in some ways by television and by politicians. If you look at a sociologist in Washington, Katherine Beckett, went back and looked at opinion surveys, you know, how seriously the public thought drug addiction, how serious of a problem that was compared to other problems. And she found that, for instance before Bush the first brandished his bag of crack that had been purchased in Lafayette Park and made the war on drugs an essential part of his presidency. Before that, political leadership for partisan purposes took place and commanded public attention, the public was not particularly concerned about illegal drug use. And afterward they developed harsher attitudes and more anxiety. So we’re going to have to see some leadership in the other direction, I think, for people to start developing other ideas.
One thing I should say about that too is that the public, quite understandably, has very fickle attitudes and conflicted attitudes toward crime and punishment as all of us do. And so polls are in some ways driven by how you ask the question. So if you ask people, do we go too... "Should we be harder on criminals than we are?" Many poll recipients, especially white men it should be said, will say yes, we need to be harder on crime. But if you ask them, the public, "Should we emphasize treatment over incarceration for non-violent drug crimes?" they also say yes. Or "Should we have more treatment in prison?" or "Should we have more education in prison?" So, you know, framing has a lot to do with how successfully we are able to pursue changes.
the problem we have had in recent years is that the Democrats from the end of the Johnson Administration forward have been running scared on criminal justice. They felt that the accusation of being soft on crime is one of their critical vulnerabilities. And so President Clinton more masterfully than his predecessors decided that he was going to be a draconian as any of his opponents and he signed the largest, harshest crime bills in American history during his watch. And he did successfully fortify his right flank on criminal justice, but with absolutely disastrous effects. And so far, the Obama Administration has not taken that approach... of course they have had a congressional majority so they haven’t had as much pressure to do so. And we will see whether they are able to have the kind of fortitude and attention and able to marshal the political capital to kind of move through some serious changes as there is some evidence that they do want to do.
Recorded April 14, 2010
Robert Perkinson: I think they are entwined in ways that we haven’t fully appreciated. We’ve seen over the past two generations, really you know breathtaking progress in terms of civil rights. My grandparents on my mom’s side are from Mississippi. Their parents were involved in... my great-grandfather was involved in driving the blacks out of a little county in Mississippi, and my 90-something year old grandmother pushed her walker down to vote for Obama in the fall of 2008, and that was stunning for her. I mean something she couldn’t have imagined for most of her life. But, you know, over the same period of tremendous progress, we’ve seen measurable disparities along racial lines and criminal justice worsen.
It used to be that the prison population in the United States was mostly white, now it’s mostly black and Latino. Before desegregation, the rate African-Americans were going to prison at roughly the rate of four times the rate of whites, now they’re roughly going to prison at the rate of seven times the rate of whites. So, it’s a huge contradiction in what’s happened in American race relations and that’s something that civil rights organizations and the media and public policymakers have not been paying attention to.
Question: Why has the racial disparity in prisons become so drastic?
Robert Perkinson: I mean, like everything in our inchoate criminal justice system, it’s difficult to disentangle all of the variables. There is certainly intentional bias in racial profiling by police, in the ways that judges regard certain defendants, even in the ways that probably Public Defenders and certainly Prosecutors and Juries do, and Parole Boards. So, the role of intentional discrimination shouldn’t be minimized. It’s still present with us even in the post-civil rights era. But there are a lot of other factors as well. You can’t very well disentangle it from poverty, educational attainment, urban density, white flight and capital flight out of central urban areas where crime, and even more than crime, incarceration has been most concentrated.
And then too, it is also important for people to know that there is all sorts of ways that race has—that racial divisions have worsened in criminal justice in unanticipated, unintentional ways. Just one example, in the ‘90’s all sorts of legislatures passed laws to enhance penalties if you sell drugs near a school... say 200 yards, 2,000 yards from a school. Well, it turns out that in rural areas, almost every place you might sell drugs is more than 2,000 yards from a school. In the Bronx, or dense parts of Los Angeles, or Washington D.C., every place on the map is within 200 yards of a school or almost, and that means that all defendants who are getting charged with drug crimes in that area, whether school kids were involved or not, are getting those enhanced penalties. Whereas, the meth dealer in rural Nebraska gets a comparatively lighter sentence. And that’s had a big, big racial impact.
Crack cocaine is less—even the racial disparities caused by the differences in sentencing for crack versus powdered cocaine. And we now know these two drugs are identical, pharmacologically. That’s had an even more dramatic racial impact.
Question: Why is it important to talk about race when we talk about incarceration?
Robert Perkinson: There are a lot of criminal justice advocacy organizations that are not sure whether it’s a good idea to stress race. It could be a divisive, could cut into our ability to put together large coalitions as we are trying to reverse some of the prison growth and severity that has accumulated over the past 40 years, but I think in order to really turn in a new direction and to move out of a policy regime that has had such transformative effects, not just in criminal justice, but in urban communities and social welfare policy and just social stratification in the United States generally, that you have to really honestly recon with the causes and there are a lot of scholars who proposed all sorts of reasons for why the U.S. has built this exceptionally large system, and I think the change in racial politics is really the only thing that can explain it fully. Or that we need to think of that central causative variable. I mean to put it a little too simply, what I think happened is a kind of echo of what happened at the end of Reconstruction, when conservatives, white supremacists in that case were able to kind of roll back the expanded freedom after emancipation and install piecemeal, Jim Crow segregation, which then ruled the states of the former Confederacy in a kind of state of sort of quasi-freedom for another century.
And segregationists—conservative segregationist Democrats, originally, like Strom Thurmond in the ‘50’s when the civil rights movement was getting rolling, they seized upon crime as one of their oppositional ways of building opposition to desegregation and Strom Thurmond famously warned that there will be a wave of terror and crime and juvenile delinquency if integration of the races goes through. And when integration of the races did go through over their objections and those Southern conservatives were defeated, they retreated to criminal justice as a way—and law enforcement, in particular, as a way to kind of police this incipient social order that they feared and had fought against.
And so the very jurisdictions I found that had fought against desegregation most vociferously have become the nation’s most vigorous jailers. And it’s sort of as if we’ve institutionalized the view of Texas’ U.S. Senator Joseph Bailey who once said that, “Hey, I want to treat the negro fairly as long as he behaves himself. And if he doesn’t, I want to drive him from this country.” And in essence, the United States has done that. We have, in a sense, banished a generation of urban youth to a series of carceral institutions and it’s disproportionately those... you know, there’s people in the middle class who achieve higher levels of educational attainment and income in the African-American community who are not experiencing these disproportionate levels of incarceration, although they are more likely to get stopped by police and so on, but it really is most concentrated among the urban poor.
So, for example, young black men in America who don’t graduate from high school, 60% of them end up in prison. That’s more than join the armed forces, or go to college. It really has become a central stage of life for a whole generation of American youth. And that really has, to the extent that the Civil Rights Movement was about expanding opportunities, making life better for African-Americans, making the United States generally a pluralist democracy, criminal justice has to a significant, if in the mainstream media, under-emphasized extent, rolled back many of the gains of the Civil Rights Movement.
Question: Is there a sense of inevitability about prison among African-Americans?
Robert Perkinson: Certainly, there’s a lot of familiarity in certain neighborhoods across the United States with imprisonment. One in nine African-American kids goes to sleep every night with one parent in prison. One danger some educators worry about, is yeah, by talking about these statistics that shows so many young black men and a lot of black women too, although not in the kind of same percentages, are ending up in prison, especially for drug crimes, that they will feel or develop a kind of nihilistic sense of the future. I hope that is not the case. You know, there is a lot of critique of the criminal justice system in hip-hop music, for instance. It does have the effect of surely making people distrustful toward the government, distrustful toward law enforcement. We see that in some kind of jury nullification and Washington D.C. and the anti-snitching campaign in Baltimore, and so on. So in that sense, it actually, by having such a racially disproportionate impact of criminal justice policies we can actually undermine law and order and public safety. But I don’t think there are cultural factors that lead to greater law breaking once you... there higher rates of arrest among African-Americans than among whites, there is no doubt about that. But once you factor out education, history of child abuse, the family dynamics, poverty—and there are a lot of those variables; you can’t just take out one and explain it—you find that there are all sorts of socially determining factors rather than any sort of racial, cultural pathology I think.
Question: Why have incarceration rates skyrocketed in recent years?
Robert Perkinson: There’s a lot of reasons. I think it’s a momentous shift in American history, and it’s really a divergence... a place where the U.S. diverged from Europe and other industrial democracies. You know, incarceration rates in most democracies are pretty stable and were for most of American history. But starting in the late 1960’s, the U.S. changed course pretty radically and incarceration rates quintupled over the last third of the 20th century.
Conventional wisdom is that it must have something to do with crime. Turns out it doesn’t. Crime rates fluctuate pretty much independent of or largely independent of incarceration rates and what I argue in the book is that it really has to do with politics, and in particular it has to do with racial politics.
Question: Have tough-on-crime rhetoric and sentencing guidelines affected incarceration rates?
Robert Perkinson: What I’m arguing is like the big causative shift has to do with the backlash against civil rights and the kind of Southern strategy in the way Democrats have tried to protect their right flank by throwing criminal defendants to the wolves in a sense. But there’s all sorts of legislative initiatives that have gone through that have made that happen. And certainly sentencing guidelines have had the unintended consequence of shifting discretionary... shifting discretion from judges to prosecutors, because almost all cases are dealt with and plea bargains and it’s meant that the real decision on how much time someone is going to do takes place at filing, rather than in a court room. And even more than that, mandatory minimums.
But there’s all sorts of, you know, every legislative session from the 1970’s forward has had, in every state almost and in the federal government have had different kind of foci and different slogans, “Zero Tolerance,” “Mandatory Minimums,” “Three Strikes.” All of them have converged to build the largest prison system in the world.
Question: How have for-profit prisons changed the way we incarcerate people?
Robert Perkinson: They have some. My own sense is not as much as some critics of the so-called "prison industrial complex" think. You know, Texas locks up more people in private prisons than anywhere else; there’s 20,000 of them. My own state where I am now living in, Hawai'i, ships a huge part of its population to private prisons on the mainland to the desert prison in Arizona and it’s mostly indigenous Hawai'ians there who are bearing the brunt of the drug war and that kind of war on crime. And those private prison companies are skilled lobbyists. They often hire former bureaucrats, former legislators, former lieutenant governors to make their case. And I think in some cases, they have... in many cases they have argued for longer sentences and tougher law enforcement as a way to generate demand for their services. But I don’t think you can—and they’ve done that successfully. So some small extent of breathtaking prison growth in America can probably be attributed to the profit motive. There’s even more money to be made in construction contracts for new prisons. But there’s a whole lot of ways that private industry can feed at the trough of government. And I don’t know that prison lobbyists are any more effective than road contractors or even people who could build community colleges if government were going in a different direction.
And also, some states have very high rates of prison growth—California, for instance—with no private industry because the guard union there is so powerful and so effective that they are well paid compared to correction officers across the rest of the country, and they have thus far, though we’ll see what happens in the next few months, been able to avoid much privatization.
Question: Why did you focus your research on Texas prisons specifically?
Robert Perkinson: Well, my family is from the South and when I went to grad school at Yale and decided to start working on prisons because as an undergrad, I had noticed you know, there’s all this money going into prisons and we’re starting at that time already to eclipse higher education spending in many states. But when I started kind of going through the literature I realized that almost all of the books were really focusing on the north, there were a lot of new books and research that were coming out of California, but the South is really where the action was. Three-fifths of the prison growth in the U.S. in the last 30 years has been in the South. The South overwhelmingly and to a lesser extent the Sun Belt, has the highest rates of incarceration in the country and there hadn’t been much attention there.
So I went down to my own state where I spent a lot of time, Mississippi, and thought about doing research there and then I spent time at the Angola Prison Plantation in Louisiana, but the more I started poking around, the more I realized that Texas is really where the action is. You know, just like if you were going to do film studies you were probably going to end up in Hollywood, or study finance you’re going to end up in New York.
Texas has now the largest penal system in the United States, 171,000 people behind bars. That’s more than California, even though California has a third larger population. Those under some sort of criminal justice supervision, including parole and probation, that gets up around 750,000 in Texas, which makes it about the same size as the booming capital, Austin. It’s got obviously the most active death chamber in the nation, the most aggressive private prison industry. Texas is also politically really important because Bush the second was President when I started this project and a lot of recent Presidents have come from Texas; Eisenhower and Johnson and both Bushes.
So, I felt that Texas was a place where we can see the Southern influence of criminal justice on the nation because it’s a kind of bridge between the Deep South and the West and the Midwest. And it really was where the action was. And I think it was the right place to look because I think looking carefully at the history of Texas kind of makes us rethink the history of crime and punishment and incarceration in the country as a whole.
Question: What about Texas is causing such high incarceration rates?
Robert Perkinson: Yeah, the sentences tend to be longer, the protections for indigent defendants so on the entry side, tend to be weaker. Texas has, although that’s starting to change now, but there’s no state-wide public defender system, so most of the public defenders are appointed by judges. And they’re paid a kind of set amount for the case, which means that the less work they do on behalf of a defendant the more they will make as an hourly wage. There’s all sorts of court-appointed attorneys who are doing... working really hard, but they are penalized for doing so. And the judges are also elected in Texas which has meant that in the kind of resurgence of conservatism that has seized on law and order as central campaign slogan and as candidates from Bush the first using Willie Horton against Dukakis forward have found that attack ads based on accusing someone of being soft on crime are pretty effective. It’s meant that most of the judges elected to the criminal appellate courts and to the local courts have been law and order conservatives—often prosecutors or victim’s rights advocates and so the judiciary in Texas has more often wielded a rubber stamp than a gavel. So that accounts for some of the higher rates of incarceration. And that explains a lot of why Texas’ death chamber is so much more active.
Texas doesn’t have the largest death row. It’s not sentencing more people to death, although there are a lot of people being sentenced to death because they are not getting good representation... but the Appellate Courts are so harsh in Texas. So much so that even the U.S. Supreme Court, which is now a very conservative body, has repeatedly over the last few years been rebuking the Texas Court of Criminal Appeals. I mean, they’ve made decisions that, to the rest of us seem unfathomable. They allowed an execution to go forward because, without review, because the defense attorneys missed a 5:00 p.m. filing deadline. They refused to release inmates who have been proven twice innocent by DNA evidence. Just a couple of weeks ago the Supreme Court had to step in and stop the execution of Hank Skinner because the prosecutors had refused for years to subject the physical evidence from his crime scene to DNA testing and the list kind of... they refused to order new trials when they found out that the judge and the prosecutor had been sleeping together during the defendant’s trial. So, there’s a whole series of kind of outrageous decisions.
So, it’s a confluence of factors, but what I didn’t get to and maybe we’ll talk about later is what I really actually argue in the book is more that there is this historical legacy of slavery and that we still live within slavery and segregation’s shadow in that really is what is governing and propelling prison growth in the south, and now in the country as a whole
Question: How has DNA testing affected the justice system in Texas?
Robert Perkinson: DNA testing has led to a kind of crisis in the judiciary because—if it’s done properly—which is often isn’t... I mean, the crime labs in Dallas and Houston have been plagued by error and prosecutorial bias... But if the labs are independent and fair, and the training is solid and they’re independent, then the results are so good that it has made us realize that types of testimony—types of evidence that we thought were unassailable, like eyewitness testimony in rape cases, in which the victims with great conviction believe that the person before them was the assailant, it has turned out in many cases that they were wrong. And there’s a lot of cognitive research now to back this up that we can kind of plant memories or change memories through the process of the lineup and so on.
So yeah, the more that we can—the more that we can provide defendants in cases which there is physical evidence the best kind of testing to ensure the most fairness, that’s better. And that’s a way to reduce, frankly the prison population and to save money in the long-term as well. I mean, I think having a robust public defender system, having a genuinely adversarial criminal justice system that will... on the one hand, stop people from going to prison, but also there’s a much larger category of gray areas where people are going down for, or pleading to sentences that are much longer than they would have gotten even if they were guilty, had all the investigative and mitigating factors come to the fore with adequate defense representation. That’s a way to reduce the prison population and it’s a way to do it in such a way that it might not entail as much political peril as some early release programs, if they’re not done carefully because that always of course will generate some portion of ghastly headlines.
Question: Why does Texas execute so many people?
Robert Perkinson: That has to do, I think primarily with the way that both indigent defense is handled in Texas and the Appellate Courts are organized. Indigent defense is court appointed rather than a public defender system, although there have been some improvements in the last couple of years. But court-appointed attorneys in Harris County, which is the death penalty epicenter of the United States, they don’t have their own evidence budgets, they don’t have salaries. They are penalized economically if they work really hard on a case, and so there’s a kind of assembly-line quality to the convictions. And then worse, the elected judges at the appellate level have let all sorts of cases go through. And indeed, we have now pretty much irrefutable evidence that Texas, in recent years, with all of the criminal procedure improvements since the Warren and the Berger courts that have been executed were innocent. Notably, Cameron Todd Willingham, who was one of my research subjects and we corresponded for a long time. He was profiled in The New Yorker.
I myself, I must confess, because I have young children and he was convicted of burning alive his two daughters in order to collect insurance money. I always felt a little queasy corresponding with him. I never really believed his constant professions of innocence, but luckily somebody did start looking into it and once they hired minimally competent arson investigators to go over the physical evidence, and once they had people go back and look at the witness testimony when they were first interviewed by police, versus what they said on the stand, they were able to show that, A) there’s no evidence of arson whatsoever, B) there’s no serious motive—the insurance settlement was paltry. And all of the kind of evidence of him being kind of dangerous was also dubious and generated by prosecutorial coaching. And everybody who has looked at that case is now convinced that Willingham was innocent.
The Texas Forensic Science Commission was about to, a couple of months ago, declare that he had been wrongly executed. Governor Ryan, in Illinois, when this happened under watch, to his credit, he was a pro-death penalty Republican, he was so troubled by the prospect of executing innocents that he vacated death row in order to really high level investigation of the entire death row, and it resulted in a lot more exonerations. And he commuted a lot of those sentences to life in prison, and some less, and some people walked free.
Governor Perry, longest serving Governor in Texas history, executed under his watch, more people than any other Governor quite possibly in American history. He took a different approach. When the evidence became clear that an innocent person had been executed under his watch, he fired the members of the Forensic Science Commission and replaced it with his cronies such that the truth would be squashed. And that’s kind of a—that’s a pattern of his in the past is to pursue policy ideologically based and to ignore truth and evidence.
Question: Is the American penal system still based on the idea of rehabilitation?
Robert Perkinson: No, that’s a huge shift. For 200 years since the birth of the Northeastern Penitentiary, the stated purpose of incarceration—if not the reality, mind you—was to grab hold of wayward citizens who had done wrong and to intervene in their lives in such a way that they would come out the other side of incarceration better than they had entered. Now, this never really worked out. It was never really attempted to the full extent. But because that was the stated purpose and because there was a kind of higher calling, in theory to corrections, it kind of mitigated the extent to which vengeance and neglect and retribution could dominate the correctional experience.
But that really has changed in the last 40 years. Rehabilitation, which reached it’s zenith under the federal system and the California system in the ‘60’s came under attack by the left and more aggressively under attack from the right and has really been squashed such that the purpose we have now for imprisoning so many people is on much more shaky ground, philosophically. It’s to incapacitate people from committing crimes. We say it’s for deterrence, but the evidence for deterrence is extremely weak. People are deterred by the presence of car alarms or police. But, you know, before a drug addict breaks into your car to steal your stereo, they do not consult sentencing schedules to find out of the penalty in Maryland is harsher than the penalty in Virginia. And it’s silly of us to think that that would happen. The death penalty also doesn’t work as a deterrent. So, it’s really incapacitation, but that’s a very expensive way to prevent crime and help public safety and it doesn’t work very well.
What the collapse of... for me in my work, with the collapse of the rehabilitative claim and the collapse of "corrections" as a framework for thinking about incarceration has done has really brought into clear review an alternative tradition of American punishment. Not a tradition that has it’s genesis in Northern churches and Quaker meeting houses and genteel reform movements, as is the traditional story told about the North—and as a traditional story you’ll find in almost any history book about prisons. But an alternative genealogy comes into view that really stretches back through racially divisive politics, and it stretches back to segregation, it stretches back to convict leasing the totally privatized incredibly brutal prison system that took root in the South after the Civil War and stretches ultimately back to slavery—and that’s a tradition of intentional debasement, public vengeance, exploitation of labor, and racial control. And in many ways, that, sadly, is the genealogy I think that gives us a more accurate sense of where we have ended up in the present than the trappings of rehabilitation that have dominated the historical literature.
Question: What can we do as a society to reduce the number of people in prison?
Robert Perkinson: What we have done of course is the opposite. In a sense, 40 years ago it’s as if we sat down and thought, okay, we have this problem of crime and crime was going up in the 1960’s, let’s figure out the most expensive, most ineffective way to deal with crime that will produce the most kind of social stratification and collateral damage, and will undo a lot of the progress that’s going on towards civil rights. No one sat around and did that at the time, not even the hardest hardliners. But that is in effect what we have done.
For 40 years we have legislated by headline. We have legislated by fear and campaign announcement. We have not governed in the interest of effective public policy, but we have let partisanship trump common sense. And we’ve been very tough on crime, but not very smart on crime at all. And it’s going to take a lot of effort to undo it, but I think you’re exactly right. What needs to happen is we need to have as a central goal, not just try to make conditions of confinement more humane, or help people who are released from prison – there’s like 750,000 people a year who get out of prison, they’re tossed out on the street with stigma, without money, angrier and more alienated then they were before. They didn’t get much treatment behind bars, so there’s a lot of emphasis on re-entry right now, as well there should be.
But in my view there really has to be an emphasis on reduction of this out-of-control, bloated government bureaucracy that is causing, and it’s like other types of government waste. I mean if we have a contract to build a highway and it gets double-billed... or air marshals—take air marshals for example, which it seems like now that the evidence is in has been totally useless government program. They haven’t committed any crime; there’s been an average of four arrests a year. But it’s relatively benign. People get jobs, no one really is harmed by it and maybe there’s a little bit of public safety, so it’s more or less – it’s wasteful, it’s irresponsible use of taxpayer money, but it’s not harming anyone.
Prison is very different. It actually is most – people think that it is responsible for maybe for 10% to 20% of reducing crime in the United States. There are many better cost-effective ways to reduce crime. And we haven’t done them, and we need to start changing direction. There are signs that that’s happening. And there needs to be changes at every level of the system. We need better indigent defense, we need fairer trials, we need a shift in our approach to addiction, toward thinking about it as a medical problem entwined with a crime and poverty problem, rather than as a solely criminal justice issue. We need to think about better ways to let people out of prison, especially as they pass beyond their criminal prime.
There is a promising piece of legislation in Congress right now that Senator Webb of Virginia is pushing to create a national criminal justice commission to look at the whole U.S. criminal justice system, especially the federal, but also in the states. At every stage, from arrest to parole, and to bring together experts from across disciplines and perspectives and to try to actually, for the first time in 40 years, look at this problem in a sober-minded way rather than in a partisan, divisive way. And that hasn’t happened since President Johnson’s crime commission in 1967, which, if you go back and dust that off, is a pretty great document. They had a whole laundry list of reforms. The prison population was 300,000 in their day and they thought that was too high. They had a whole series of recommendations for enhancing public safety by preventing child abuse with more effective policing, with better public housing, with afterschool programs, as well as more effective law enforcement techniques, and a better targeting of our criminal justice resources, which are so disproportionately devoted to drug crimes right now and not toward the crimes we really tend to be afraid of. So I think that's promising.
But in order for us to undo 40 years of warring on crime and 40 years of warring on drugs, it’s going to take a lot more than this sort of budget-driven minor reforms that many of the states are undertaking now. And I think it’s going to take leadership from President Obama and Congress to make this an issue on par with health care or banking reform. And it really should be. I mean, in President Obama’s inaugural address, he said that we want to carry this great gift of freedom that American’s have carried over the course of our history, or at least tried to carry through the better chapters of our history and deliver it safely to future generations. We cannot do that. We cannot carry the torch of freedom into the 21st century with having built the free world’s version of the Gulag... with 2.4 million Americans behind bars with more than a million African-Americans having lost the vote, it fundamentally undermines our claims to democratic leadership in the same way segregation did during the cold war and the same way I believe that slavery was the great contradiction to the founding of the American democratic experiment.
Question: Why has crime, generally, declined over the past 20 years?
Robert Perkinson: We have seen a historic decline in crime all through the 1990’s. It has not yet in a very significant way picked up with this recession. We’ve seen, and this is very important for people to realize, crime rates in some cases drop more steeply in states that have not incarcerated such huge portions of their populations. One of the steepest declines has been in New York City, which has sent a whole lot of people to jail on Rockefeller drug laws, but nothing like the South. And yet crime in New York has fallen much more steeply then in Houston or Dallas. So the crime drop is a great riddle for social scientists to figure out, but critically, at least I think it’s important for people to know that the massive growth of incarceration is, we think, not one of the largest determining factors in decreasing that crime. Incarceration has been going up straight since the 1970’s.
In some of the periods incarceration has been going up crime has been going up, other times down. But there is not a clear correlation between incarceration and protecting the public. In fact, one of the statistics you would think you would have gotten if you believe in a kind of weak version of deterrence, you would think that all of these harsher penalties would at least deter some of the people who know the criminal justice system best—criminals and former prisoners—from committing crimes. Because they do become, even if their levels of education attainment are somewhat limited, through being cranked through the criminal justice system, they learn a lot of the criminal law and they know the penalties are very harsh. So if deterrence were to work and if imprisonment was an effective way to deal with crime, you would think that recidivism rates in the United States would be lower now than they were when the prison boom began, when penalties were comparably more mild. Instead, the opposite has occurred, recidivism rates have gone up. One more piece of evidence that shows this experiment in mass incarceration has been one the one hand a total failure in terms of protecting the public. On the other hand a catastrophe for the weakest members of our... the most vulnerable members of our society, including those who are more victimized by crime. That’s also in the poor neighborhoods. It hasn’t helped them in any way. Their people are getting shipped off to rural prisons and then those rural prisons are getting the census money and so on, and they are still suffering high rates of crime. So, it’s a mess, I’m afraid.
Question: Is the monetary cost of incarceration less than the cost of crime?
Robert Perkinson: People have tried. It’s harder to do than people have claimed. Some economists have said, well even if you are spending $50,000 a year to lock someone up, as is the price in California where the corrections officers are well paid, because that person you are putting behind bars would have committed ‘X’ number of crimes, then you’re actually saving money. But those studies kind of fall apart for a whole series of reasons. They’re based on surveys of certain classes of criminals that don’t correlate very well to who is actually in prison. They don’t take into account the ways that crime can’t just be thought of as a subtraction from the economy. I mean as strange as it sounds... If I steal $100 from you, that doesn’t decrease the GDP of the United States, that just means that I have $100 to spend and generate economic activity and you don’t. So, it’s not a subtraction, it’s not a cost to society, it’s a cost to you. It’s not a cost to society.
So those studies don’t hold up very well. I mean, it’s true that I think, you know, that incarceration is not something that we’re going to be able to get rid of entirely. There are people who are extremely dangerous. A very small portion, it’s important to realize. We think that prison beds are filled with dangerous sexual predators and armed robbers and serial killers because that’s how it seems watching the nightly news. That’s not the case. Most people going into prison are non-violent offenders in a given year, and most of them are drug offenders, or are hooked on alcohol and so on.
Question: Why are people beginning to take the issue of prison rape more seriously?
Robert Perkinson: Well, there’s so many people in prison that sexual victimization in prison now has come to constitute a significant portion of the sexual victimizations in the society as a whole. Human Rights Watch and some of the human rights organizations have really began in the late ‘90’s documenting the incredibly high rates of sexual assault. Which was not new. If you go back and look at the very economical cost-effective regimented system that Texas was able to perfect over the course of the 20th century, based on convict guards. A lot of the ways those guards were in a sense compensated was by officers turning a blind eye to their sexual victimization of "punks," so-called "punks" in prison. So, sexual assault has been endemic and often a tool of... a tool of subjugation in prisons for a long time, but it has gotten a lot more attention.
And under the Bush Administration—to the Bush Administration’s credit—they signed legislation to kind of conduct a lot more research into sexual victimization and so we’re getting a lot better data on that now, and I think because the data is now available, some corrections officers are starting to take it more seriously and therefore when victims, or would-be victims, are in a compromising situation we are beginning to have a system in which they feel like they can go to the authorities and seek protection and receive redress. But we are, frankly, a long way from that.
And there is, of course, a public health component to this as well to both coerced sex and consensual sex in prison, and that is that another way that mass imprisonment is adversely affecting the public is that they have become incubators of public health problems. They’ve become incubators of hepatitis B; they’ve become incubators of HIV and antibiotic-resistant tuberculosis. And of course all of that has consequences beyond prison walls. It’s yet another reason to try to use incarceration as a penalty of last resort than a penalty of first resort, as we have started doing in recent years.
Question: Are public attitudes about imprisonment changing?
Robert Perkinson: I don’t know if we have seen a change in the public mindset yet. We have seen a leveling off of the prison population in the last few years. We have seen a lot of states start to mitigate some of the harsh steps they’ve taken over the past two generations. Texas has rolled back partially the Rockefeller Drug Laws, California, facing bankruptcy, is struggling to release 40,000 inmates in order to comply with Federal Court Orders. A lot of states are trying to figure out how to save money, because of the budget crisis, by downsizing these resource-devouring bureaucracies that they’ve built. But I don’t know if we have yet see a shift in public attitudes. That will probably take... in come ways there’s evidence that the harsh public attitudes have been driven in some ways by television and by politicians. If you look at a sociologist in Washington, Katherine Beckett, went back and looked at opinion surveys, you know, how seriously the public thought drug addiction, how serious of a problem that was compared to other problems. And she found that, for instance before Bush the first brandished his bag of crack that had been purchased in Lafayette Park and made the war on drugs an essential part of his presidency. Before that, political leadership for partisan purposes took place and commanded public attention, the public was not particularly concerned about illegal drug use. And afterward they developed harsher attitudes and more anxiety. So we’re going to have to see some leadership in the other direction, I think, for people to start developing other ideas.
One thing I should say about that too is that the public, quite understandably, has very fickle attitudes and conflicted attitudes toward crime and punishment as all of us do. And so polls are in some ways driven by how you ask the question. So if you ask people, do we go too... "Should we be harder on criminals than we are?" Many poll recipients, especially white men it should be said, will say yes, we need to be harder on crime. But if you ask them, the public, "Should we emphasize treatment over incarceration for non-violent drug crimes?" they also say yes. Or "Should we have more treatment in prison?" or "Should we have more education in prison?" So, you know, framing has a lot to do with how successfully we are able to pursue changes.
the problem we have had in recent years is that the Democrats from the end of the Johnson Administration forward have been running scared on criminal justice. They felt that the accusation of being soft on crime is one of their critical vulnerabilities. And so President Clinton more masterfully than his predecessors decided that he was going to be a draconian as any of his opponents and he signed the largest, harshest crime bills in American history during his watch. And he did successfully fortify his right flank on criminal justice, but with absolutely disastrous effects. And so far, the Obama Administration has not taken that approach... of course they have had a congressional majority so they haven’t had as much pressure to do so. And we will see whether they are able to have the kind of fortitude and attention and able to marshal the political capital to kind of move through some serious changes as there is some evidence that they do want to do.
Recorded April 14, 2010
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