A recent article by Deborah Small at Salon raises some genuinely valuable points about the likely pitfalls of prison reform and the broad scope of the problem of criminalization. Yet the headline, and the later paragraphs, package these important and interesting points into yet another one of the “progressives should fear and despise libertarians” pieces that have been endemic recently at center-left websites like Salon.
The article begins by discussing various ways criminalization and oppression can persist even as the state makes cosmetic changes to its legal system and uses the language of humanitarian reform. Given that a broad coalition of government officials, ranging from Eric Holder to Rick Perry, are suddenly showing enthusiasm for prison reform, these possible pitfalls of reform are vital to discuss. For example, she quotes a 1971 report titled “Struggle for Justice,” which notes the superficial and euphemistic nature of many previous reforms. As the authors of that report noted, “Call them ‘community treatment centers’ or what you will, if human beings are involuntarily confined in them, they are prisons.”
Small also quotes recent remarks by Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Michelle Alexander explained her concerns about upcoming prison reform as follows:
“We see politicians across the spectrum raising concerns for the first time in 40 years about the size of our prison state,” said Alexander, “and yet I worry that so much of the dialogue is driven by financial concerns rather than genuine concern for the communities that have been most impacted and the families that have been destroyed” by aggressive anti-drug policies.
Unless “we have a real conversation” about the magnitude of the damage caused by the drug war, “we’re going to find ourselves, years from now, either having a slightly downsized system of mass incarceration that continues to hum along pretty well,” she said, “or some new system of racial and social control will have emerged again, because we have not learned the core lesson that our history is trying to teach us.”
These are important concerns. It is vital to remember that the prison system as we know it emerged out of reform. For example, solitary confinement, a brutal method of control and psychological torture, was initially developed by Quakers and intended as a humanitarian reform. The criminalization of blacks in this country emerged from a loophole in the 13th Amendment, which said that slavery and involuntary servitude were unlawful “except as a punishment for crime whereof the party shall have been duly convicted.” The reformist abolition of slavery was piecemeal, allowing the reestablishment of slavery through the penal system.
To avoid these pitfalls, Deborah Small recommends a broader emphasis than simply ending mass incarceration. Instead, she proposes a framework that emphasizes ending mass criminalization. She explains the distinction as follows:
Mass incarceration is one outcome of the culture of criminalization. Criminalization includes the expansion of law enforcement and the surveillance state to a broad range of activities and settings: zero tolerance policies in schools that steer children into the criminal justice system; welfare policies that punish poor mothers and force them to work outside of the home; employment practices that require workers to compromise their basic civil liberties as a prerequisite for a job; immigration policies that stigmatize and humiliate people while making it difficult for them to access essential services like health care and housing. These and similar practices too numerous to list fall under the rubric of criminalization.
When people talk about mass incarceration they’re usually referring to the more than 2 million Americans behind bars in local jails or state and federal prisons. That number, as high as it is, obscures the fact that on any given day an additional 4 million people are under some form of correctional supervision — generally, probation or parole. According to the Wall Street Journal, studies reveal American men have a 52 percent likelihood of arrest over their lifetime — that’s basically a 50/50 chance. Either American men have an extraordinarily high rate of criminality or we’ve cast the police net way too wide and caught way too many in it.
I’m inclined to agree with this. While prisons are particularly repugnant institutions, people will not be free if they are released from prisons but then subjected to mass surveillance, police harassment, invasive searches, prison-like schools, incarceration within “halfway houses,” stultifying state-secured structural poverty, or other forms of systemic coercion and control. This why my abolitionism is holistic. Rather than merely looking at the institutions of prisons, I look at the entire state apparatus and social order.
After this stellar start, however, Deborah Small’s article begins to fall into a familiar mode for Salon and Alternet articles, expressing common fears about libertarians, particularly the libertarian right. To some extent, even though I am a left-libertarian and supporter of freed markets, I share her concerns about right-wingers like Mike Lee, Rand Paul, and Grover Nordquist. These right-wing advocates of limited government do not oppose prisons and policing per se. They largely want to see a smaller and more limited system of imprisonment and criminalization, but they certainly don’t wish to see it abolished altogether. Much of their concern with the drug war is also rooted in a decentralist skepticism of federal power. This opposition to federal power will not stop state and local level excesses of imprisonment and criminalization, such as municipal laws that criminalize the homeless or repressive local police practices like Stop and Frisk. Moreover, there are reasons to be concerned that a leaner system of criminalization would also be more efficient at its unjust ends. This is why I’m an anarchist rather than a minarchist. Minarchist libertarians wish to preserve some of the state functions I consider most destructive. They often function as efficiency experts for the state rather than as opponents of state power.
Where I definitely part ways with Deborah Small is her insistence that opposing criminalization requires the use of state power to implement a progressive economic agenda. She writes, “Libertarian politicians like Rand Paul, Mike Lee and Rick Perry oppose things most people want and need: increasing the minimum wage; expanding Medicaid eligibility; increasing food stamps and other income support; investing in early childhood education; protecting consumers from predatory financial institutions and expanding the vote.” It’s a bit bizarre to label Rick Perry a libertarian; he’s simply a conservative statist. But more importantly, I strongly disagree with the claim that the state programs Deborah Small mentions are necessary to ending criminalization and the structural poverty that characterizes it. Frankly, it’s bizarre to me that someone believes strengthening the state is necessary for challenging criminalization.
How does Deborah Small think these programs are secured? The taxation that funds government programs occurs through state force, with the threat of imprisonment for tax evasion playing a key role in obtaining the resources for programs like Medicaid and food stamps. In other words, Small proposes to use criminalization in order to end criminalization.
Moreover, welfare programs are all too often used as mechanisms to monitor and control the poor in this country. As Thaddeus Russell documents, The Other America, a book that played a key role in the ideology behind the American welfare state, displayed conservative and paternalistic contempt for the poor. This paternalistic ideology had a deep influence on American anti-poverty programs, which have been used as mechanisms to coerce poor Americans into complying with socially conservative norms. Russell explains:
In fact, Lyndon Johnson’s “war on poverty” deployed legions of social workers, armed not only with the power to extort proper behavior from the poor with welfare payments but also with the prevailing idea that their subjects should be treated as children, with restrictions imposed on their sex lives, leisure time, diet, spending habits, clothing, and grooming styles. In 1996 the welfare regime tightened its grip with the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), signed into law by another Democrat, Bill Clinton. This “welfare reform,” as it was known, enforced the twin pillars of bourgeois culture: sexual repression and the Protestant work ethic. The act instituted “workfare,” making welfare payments available only to those who have jobs or participate in government make-work such as picking up leaves in public parks or removing trash from subway stations. Many who supported the bill argued not only that the poor needed to be weaned from their dependency on the state but also that they needed to learn what the Puritans brought with them to New England: the idea that work in itself, no matter how ill-paying or demeaning, is virtuous. The bill also appropriated $250 million for “mentoring, counseling, and adult supervision to promote abstinence from sexual activity.” Welfare recipients were to be taught “the social, psychological, and health gains to be realized by abstaining from sexual activity,” that “a mutually faithful monogamous relationship in context of marriage is the expected standard of human sexual activity,” and that “sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects.”
In other words, the welfare state has long been used as a means of coercively imposing the work ethic and socially conservative sexual values.
Similar observations about welfare and compulsory imposition of the work ethic were made by Frances Fox Piven and Richard Cloward in their book Regulating the Poor. They write:
As for relief programs themselves, the historical pattern is clearly not one of progressive liberalization; it is rather a record of periodically expanding and contracting relief rolls as the system performs its two main functions: maintaining civil order and enforcing work. … But much more should be understood of this mechanism than merely that it reinforces work norms. It also goes far toward defining and enforcing the terms on which different classes of people are made to do different kinds of work; relief arrangements, in other words, have a great deal to do with maintaining social and economic inequities. The indignities and cruelties of the dole are no deterrent to indolence among the rich; but for the poor person, the specter of ending up onthe welfareor inthe poorhousemakes any job at any wage a preferable alternative. And so the issue is not the relative merit of work itself; it is rather how some people are made to do the harshest work for the least reward.
Thus welfare plays a key role in upholding work discipline for capitalists.
Welfare by its very nature lends itself to serving as a mechanism for social control. Ultimately, being dependent upon others means being at their whim. Given who controls the levers of state power, this does not bear well for poor people who are made dependent on state power. As Iris Young explained in her classic essay Five Faces of Oppression, “Being a “dependent” in our society implies being legitimately subject to the often arbitrary and invasive authority of social service providers and other public and private administrators who enforce rules with which the marginal must comply, and otherwise exercise power over the conditions of their lives.” A universal basic income guarantee (UBI) could hopefully reduce these relationships of power and control by making payments unconditional, but as C4SS’s Ryan Calhoun points out, even UBI could be used as a tool to discipline and control the poor. In fairness, I should note that much of Deborah Small’s point seems to be that things like mandatory drug tests for welfare recipients are a form of criminalization, and she and I would probably join together to fight such conditions and forms of control.
However, all of this means that the welfare state serves not as an antidote to criminalization, but often as another weapon of criminalization. The money used to finance welfare schemes is obtained through taxation by threat of imprisonment and other criminal sanctions. Meanwhile, the recipients of welfare payments are subject to control and surveillance by dehumanizing bureaucracies. This is hardly the tool opponents of criminalization should want to use to end structural poverty. The minimum wage has its own problems, not the least of which is its history as a weapon to marginalize and exclude minorities, immigrants, and “undesirables” from the workforce. Minimum wage hikes should not be the preferred tool for ending structural poverty either, particularly for those of us who want to help liberate marginalized people from criminalization.
But if not welfare and minimum wage increases, how will we challenge the poverty and inequality that characterizes the prison state? Well, there’s a lot to do on that front. We should challenge the various ways that the state creates artificial scarcity and creates structural poverty. We should work to abolish the borders and immigration restrictions that keep too many trapped in poverty. We should build grassroots institutions of mutual aid, putting the power in the hands of the communities in need rather than in the hands of bureaucrats and politicians. We should support radical labor unions like the Coalition of Immokalee Workers, which organize outside of the state’s bureaucratic structure to secure better working conditions, protect human rights in the fields, and challenge the power of bosses and capitalists.
What we should not and must not do is strengthen the state that created the systems of criminalization and mass incarceration. While concerns about prison reforms proposed by conservatives and right-libertarians are very warranted, we must be equally skeptical of reforms proposed by liberals and progressives. We must not forget that Bill Clinton was the incarceration president. We must not forget that many progressive organizations have pushed hate crimes laws that strengthen the prison state and the warfare state alike. We must not forget that award winning liberal activist Jane Marquardt is an executive at the third largest for-profit prison company in America. In other words, we must extend Deborah Small’s justifiable criticism of libertarian and conservative prison reforms to also cover liberal and progressive prison reforms.
We also shouldn’t merely change how we have our conversations without changing how we think about institutions. No matter how deeply we care about criminalization, structural poverty, inequality, or racial injustice, intentions and consequences are different. If we try to solve these problems by putting more money and power into bureaucratic institutions governed by perverse political incentives, we will see clearly counterproductive results.
We must extend our skepticism and our rage to the state itself. The state is a system of organized violence and repression. It is a system of class rule, through which oligarchs extract wealth from the masses to enrich their cronies. Prisons, policing, and criminalization are among the most toxic features of this system of coercion. Rather than simply reforming this system, let’s abolish it, and replace it with a world built on voluntary association and grassroots community organizing.