Why Are We So Punitive?

By William J. Farrell

Our Punitive Society: Race, Class, Gender and Punishment in America (2nd ed.) by Randall G. Shelden and Morghan Vélez Young. Waveland Press Inc., Long Grove, Ill. Paperback, $41.95.

The political events of the past year have focused attention, again, on the inequities and inefficiencies of the American criminal justice system. George Floyd, Breanna Taylor and numerous other events have been countered by the Black Lives Matter movement, moving criminal justice bias onto the front page of the news.

In a search for answers and solutions, there is common agreement on the necessity for humane alternatives to the dominant criminal justice policies of recent decades: “War on Drugs,” mass incarceration, “Get Tough,” strong punishment. To understand this debate, Shelden and Vélez Young have published a timely and reader-friendly exploration of the social context of contemporary punishment: Our Punitive Society: Race, Class, Gender and Punishment in America (2nd ed.).

“Why are we so punitive?” is the simple, powerful question that defines this book. In taking a macro view of the problem, it is clear that it is punishment, not crime, that defines the criminal justice system. This book is about the system of punishment in the United States, a history filled with contradictions.

Although we have a constitution that emphasizes equality before the law, the practice of law is filled with bias, discrimination and inefficiencies.

In recent decades, there has been a dramatic increase in incarceration rates and a concomitant rise in the amount of money spent on the system. We have little to show for the effort.

We still have the highest rate of crime (especially violent crime) in the world. How did this happen? Why are we the most punitive nation on earth?

Shelden and Vélez Young help us understand the historical context of punitiveness. The constitutional view of punishment is rooted in the classical theory view of individual deterrence.

Crime is defined by free will, reason and hedonism—people seek pleasure and avoid pain. This view was reinforced by Puritanism, the dominant religious view of the time, a view that believes that people are born with a predisposition to sin. As a result, individual punishment, often harsh punishment, was part of the prevailing values of the time. Even our modern criminal justice system is based on an assumption of free will, deterrence and punishment.

The introduction to the book says it best: This book is about punishment in the United States.

The U.S. system of punishment is filled with ironies. Direct expenditures in the three major components of the criminal justice system (police, courts, corrections) in 2016 were almost $295.6 billion. An additional $67 billion is spent on private security systems (security guards, gated communities, thousands of security guides). Yet, the crime rate, especially violence, remains the highest in the world.

We incarcerate more people per capita than any other country in the world. Mass incarceration is expensive and ineffective. How did we get here?

The book’s thought-provoking overview focuses on the historical evolution of the business of punishment. Individual chapters outline the evolution of structured inequalities and historical patterns of control regarding slavery, the death penalty, women, the LGBTQ community, juveniles and overall supervision.

The evolution of American punishment to the highest rate of incarceration in the world evolved over 200-plus years. Incarceration separates the powerless from the powerful, the poor from the rich. All of society pays a price for these inequalities.

The book’s statistics demonstrate the inequalities of class, race and gender in the system. Indeed, our criminal justice is now defined by these inequalities. Shelden and Vélez Young state this clearly in the preface to the second edition: “I have reached the conclusion that you cannot possibly discuss in any honest way the subject of crime and punishment in America without reference to a class, race and gender inequality.”

The data on discrimination are overwhelming. How did we get here, and what do we do to fix it?

War on Drugs

The book does an excellent job of outlining the history and effects of the war on drugs. The war on drugs began during the Nixon years. Declaring a war on drugs was a safe way to declare war on minorities.

The federal government passed laws meant to “get tough” on drug dealers. The core of the changes was a movement to “mandatory” sentencing, to take sentencing discretion out of the hands of judges.

Drug convictions meant an automatic prison sentence. As a result of this decision alone, the number of people sentenced to prison skyrocketed.

Sentences grew longer as limitations were placed on probation and parole. Judges lost control of sentencing, shifting the power of the courts to prosecutors. As a result, the number of people sentenced to prison nearly quadrupled from 1980 to 2010. The vast majority of the people sentenced to prison were first-time, nonviolent offenders—people who previously did well on probation in the community.

The criminal justice system was forced to expand to accommodate these rising numbers. States and the federal government built many new prisons, hired more police and prison guards, and expanded the entire system. The business of social control expanded greatly. In a brilliant chapter, the authors outline the effects of this new business of punishment—the prison industrial system.  

The term prison industrial complex is a play on the more familiar term military-industrial complex. The military-industrial complex is a system of relationships between government, private businesses and cities that profit from large military expenditures.

The military budget is bloated by expensive contracts for unnecessary weapons. Weapon systems provide jobs for many people. Cutting back unnecessary expenditures evokes strong pushback from states that have grown dependent on these jobs.

The same is true with the expanded criminal justice system. The expansion of the system means many more prisons and more jobs. These institutions are usually built in rural areas with few job opportunities. As states attempt to cut back on incarceration, there is pushback from the rural counties that depend on the jobs provided in this area.

Correctional officers’ unions have become politically powerful, especially in large states such as California. They lobby against any changes in the war on drugs.

Police departments expand, hiring many more officers. These officers are rewarded for their arrests. The quickest way to build your arrest numbers is to focus on the least powerful groups who use drugs, the “low hanging fruit.”

The data clearly show that drug use is common across all social and economic groups in American society. However, the poor and minorities were the ones arrested. This became an issue of power and control.

Inequality in the system increased dramatically because of these new drug laws. The application of these drug laws became systematically biased. In the end, these laws did nothing to solve the drug problem or to lower the amount of crime in American society in any way.

Changes

Since 2010, the number of people sentenced to prison in this country has decreased. The system had expanded for half a century. Changes in public attitudes toward drugs, politics and the war on drugs began to have an effect. The public (and some conservative politicians) began to revolt against the high cost/low benefit formula for the drug wars.

The system has begun to change, but not without a fight, pushback from prosecutors and “get tough” politicians. Where do we go from here?

Shelden and Vélez Young offer solutions to the problems described in the book (something that is surprisingly rare in criminological writings). The last chapter, “Is There a Better Way,” offers several solutions.

For starters, they hope to make the public aware of the workings of the criminal justice system. The public knows little about the system. The media emphasis on crime content in the news increases fear of crime and makes change more difficult.

The authors call for the decriminalization of most drugs. They argue for curbing prosecutorial power and expanding community involvement. Expansion of diversion (especially for juveniles) also is an effective alternative to mass incarceration. Most important, restorative and community justice needs to help people reintegrate into the communities in order to strengthen them.

Shelden and Vélez Young have done an excellent job of breaking the simplistic bond between crime and punishment. Punishment has expanded apart from crime, in a manner that supports and reinforces the inequalities of our broader society. The new movements against inequality can find an ally in this brilliant new text.

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William J. “Bill” Farrell, Ph.D., is a professor of criminology and criminal justice at Indiana University Southeast in New Albany, Ind. His research focus is on issues of corrections and punishment and white collar crime. Contact him at profwjf@gmail.com.