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PRISONS AFFIRMATIVE
1AC
Prisons
FIRST – prisons
The federal prison population is skyrocketing
James 14 – Crime policy analyst
(Nathan, “The Federal Prison Population Buildup: Overview, Policy Changes, Issues, and Options,” Congressional Research Service,
https://www.fas.org/sgp/crs/misc/R42937.pdf)//BB
Since the early 1980s, there has been a historically unprecedented increase in the federal prison∂
population. Some of the growth is attributable to changes in federal criminal justice policy during∂ the previous three
decades. An issue before Congress is whether policy makers consider the rate∂ of growth in the federal prison population sustainable, and if not, what changes could be made to∂ federal criminal justice policy to
inmates under the
Bureau of Prisons’ (BOP’s) jurisdiction has increased from∂ approximately 25,000 in FY1980 to over 219,000 in FY2013. Since FY1980,
reduce the prison population while maintaining public safety.∂ This report explores the issues related to the growing federal prison population.∂ The number of
the federal prison∂ population has increased, on average, by approximately 5,900 inmates each year. Data show that ∂ a growing proportion of inmates are being incarcerated for immigration- and weapons-related∂
the largest portion of newly admitted inmates are being incarcerated for drug∂ offenses. Data also
Changes in federal sentencing and correctional policy since the early
1980s have contributed to∂ the rapid growth in the federal prison population . These changes include increasing the number of∂
offenses, but
show that approximately 7 in 10 inmates are sentenced for five years or less. ∂
federal offenses subject to mandatory minimum sentences; changes to the federal criminal code∂ that have made more crimes federal offenses; and eliminating parole.∂ There are several issues related to the growing
federal prison population that might be of interest∂ to policy makers:∂ • The increasing number of federal inmates, combined with the rising per capita ∂ cost of incarceration, has made it increasingly more expensive
to operate and∂ maintain the federal prison system. The per capita cost of incarceration for all∂ inmates increased from $21,603 in FY2000 to $29,291 in FY2013. During this∂ same period of time, appropriations
for the BOP increased from $3.668 billion to∂ $6.445 billion.∂ • The federal prison system is increasingly overcrowded. Overall, the federal∂ prison system was 36% over its rated capacity in FY2013, but high- and
mediumsecurity∂ male facilities were operating at 52% and 45%, respectively, over rated∂ capacity. At issue is whether overcrowding might lead to more inmate∂ misconduct. The results of research on this topic
have been mixed. One study∂ found that overcrowding does not affect inmate misconduct; but the BOP, based∂ on its own research, concluded that there is a significant positive relationship ∂ between the two.∂ •
The inmate-to-staff ratio has increased from 4.1 inmates per staff member in ∂ FY2000 to 4.8 inmates per staff member in FY2013. The inmate to correctional∂ officer ratio was the same in FY2013 as it was in
FY2000 (9.9 inmates for each∂ correctional officer), and the current inmate to correctional officer ratio is down ∂ from a high of 10.9 inmates per correctional officer in FY2005. ∂ • The growing prison population is
taking a toll on the infrastructure of the federal∂ prison system. The BOP reports that it has a backlog of 159 modernization and ∂ repair projects with an approximate cost of $342 million. Past appropriations left ∂ the
BOP in a position where it could expand bedspace to manage overcrowding∂ but not reduce it. However, reductions in funding since FY2010 mean that the∂ BOP will lack the funding to begin new prison
construction in the near future. At∂ the same time, it has become more expensive to expand the BOP’s capacity.∂ Should Congress choose to consider policy options to address the issues resulting from the∂ growth
in the federal prison population, policy makers could choose options such as increasing ∂ the capacity of the federal prison system by building more prisons; investing in rehabilitative∂ programming (e.g., substance
abuse treatment or educational programs) as a way of keeping∂ inmates constructively occupied and potentially reducing recidivism after inmates are released; or ∂ placing more inmates in private prisons.∂
Policy makers might also consider whether they want to revise some of the policy changes that∂ have been
made over the past three decades that have contributed to the steadily increasing∂ number of
offenders being incarcerated. For example, Congress could consider options such as∂ (1) modifying mandatory
minimum penalties, (2) expanding the use of Residential Reentry∂ Centers, (3) placing more offenders on probation, (4) reinstating
parole for federal inmates, (5)∂ expanding the amount of good time credit an inmate can earn, and (6) repealing federal criminal∂
statutes for some offenses.
Imprisonment inhibits social life---egalitarian politics are precluded by
disenfranchisement of the new slave
Gordon 6 – Professor of sociology at UC Santa Barbara and the author, most recently, Keeping Good Time: Reflections on
Knowledge, Power, and People
(Avery, “Abu Ghraib: Imprisonment and the War on Terror,” Race Class 48.1, doi: 10.1177/0306396806066646)//BB
The destiny of the captive The increasing erosion of the distinction enshrined in the eighth amendment
between cruelty and decency and between the humane and the barbaric is tied to the production of a
permanent prison population. Permanent not only in the sense of always available but permanent
also in the sense of perpetuity, of assigning to certain groups of people – in the US Blacks, Indians and
Latinos – the caste and stigmata of the perpetual prisoner. The modern transatlantic slave system, which cap- tured
millions of Africans, inventively introduced permanent or heredi- tary enslavement, thereby making being a slave no longer a
temporary social status, however despised or dishonoured, but, rather, a constitu- tive condition of one’s social and juridical being.
The significance of slavery to the historical development of the US prison system and to who became and still today most frequently
becomes a prisoner is well known.27 But racism, by which I mean ‘group vulnerability to pre- mature death’,28 explains not just who
becomes a prisoner but also what the prisoner becomes. In the US, where slavery was most elabo- rated and remained so essential
to national development, the
fundamental racial ontology of permanent slavery was transferred, after the
formal abolition of slavery, to the prisoner. It was prisoners who became, with the scientific
legitimacy of criminal anthropology and bearing always the double burden of racialist
ontology , an inferior race in and of themselves. ‘The captive’, Orlando Patterson has written, ‘always
appears . . . as marked by an original indelible defect which weighs endlessly upon his destiny.’29
And what is the destiny of the captive today? In a word, permanent abandonment. As Ruth Wilson Gilmore has
is the ‘rigorously coordinated and organized setting aside of people
and resources’.30 It is the core feature of the expansion of a parasitic security/war economy rooted
in mass imprisonment. Mass imprisonment warehouses surplus labour, that is people, the majority of
whom are Black, for whom no room will be made in the legal capi- talist economy. And, by criminalising poverty
and resistance to satura- tion policing, mass imprisonment removes from civil society potentially
active, angry and demanding political subjects to a remote and closed place where they are civilly
disabled and socially dead.31 In both these imperatives, individuals and communities are abandoned to a
vast system of social control whose reach extends well beyond its seem- ingly targeted population to us all. At the same
forcefully argued, abandonment
time, the so-called free society is abandoned, left bereft of the company and the contributions of these same individuals and
communities. From the vantage point of the US, where mass imprisonment and its constituent role in what passes for economic
development has advanced to unprecedented and alarmingly taken-for-granted levels, and where African American communities in
particular are staggering under the historical weight of what Gilmore aptly describes as ‘rounds and rounds’ of regimes of
abandonment, the tendency to permanent captivity is perhaps more evident than elsewhere.32 As I’ve
tried to sug- gest, the
expansion of super-maximum imprisonment is one important indicator and means.
Another is the extension of civil disability. The collateral consequences of felony conviction in the
US include loss of civil rights and citizenship rights while imprisoned (or while paroled or on probation) and now,
increasingly, upon final release, that is to say, indefinitely: loss of access to the law , to the right to vote ,
to serve on a jury , to hold public office , to live in certain neighbourhoods , to live in
public housing , to associate with certain individuals , to hold certain jobs. Perpetual civil
disability requires, in effect, treating the prisoner and the former prisoner as socially dead , as
having lost the right to belong; a condition of liminal social existence (a living dead person)
lacking public worth, social standing and honour. Upon appli- cation, social death is always permanent, a
condition or a taint that appears to belong to the captive (or slave); his or her essential mark, so to
speak. And, in this, it is a powerful legitimising and racialising tool for justifying the indefinite
imprisonment of people who might otherwise be your neighbours or fellow citizens/residents or
friendly, or even utterly strange, strangers. Orlando Patterson rightly called social death an ‘idiom of power’. And he strikingly
described how a society’s outsiders – foreigners, infidels, prisoners of war – and a society’s insiders – criminals, the
destitute – could both be conceived as people who did not and could never belong: ‘The one fell because he
was the enemy, the other became the enemy because he had fallen.’ 33
The impact is much larger than just the site of the prison---widespread
incarceration undercuts solution-building to complex factors driving
inequality---the impact is disposability
Davis 5 – teaches in the History of Consciousness program at the University of California and has been actively involved in
prison-related campaigns since the events that led to her own incarceration in 1970
(Angela, Abolition Democracy: Beyond Prison, Torture, and Empire, 2005, p. 40-41)//BB
Well the link that is usually assumed in popular and scholarly discourse is that crime produces punishment. What
I have tried
to do—together With many other public intellectuals, activists, scholars—is to encourage people
to think about the possibility that punishment may be a consequence of other forces and not an
inevitable consequence of the commission of crime. Which is not to say that people in prisons have not committed
what we call “crimes”——I’m not making that argument at all. Regardless of who has or has not committed crimes, punishment, in
brief, can be seen more as a consequence of racialized surveillance. Increased punishment is most often a result of increased
surveillance. Those communities that are subject to police surveillance are much more likely to
produce more bodies for the punishment industry. But even more important, imprisonment is the
punitive solution to a Whole range of social problems that are not being addressed by those social
institutions that might help people lead better, more satisfying lives. This is the logic ofwhat has
been called the imprisonment binge: Instead of building housing, throw the homeless in prison.
Instead of developing the educational system, throw the illiterate in prison. Throw people in
prison Who lose jobs as the result of de-industrialization, globalization of capital, and the
dismantling of the welfare state. Get rid of all of them . Remove these dispensable populations
from society. According to this logic the prison becomes a way of disappearing people in the
false hope of disappearing the underlying social problems they represent .
Challenging institutional racism is a prior ethical question— it makes
violence structurally inevitable and foundationally negates morality
Albert Memmi
2k, Professor Emeritus of Sociology @ U of Paris, Naiteire, Racism, Translated by Steve Martinot, p. 163-165
The struggle against racism will be long, difficult, without intermission, without remission,
probably never achieved. Yet, for this very reason, it is a struggle to be undertaken
without surcease and without concessions. One cannot be indulgent toward racism; one
must not even let the monster in the house, especially not in a mask. To give it merely a foothold
means to augment the bestial part in us and in other people, which is to diminish what is human.
To accept the racist universe to the slightest degree is to endorse fear, injustice, and violence. It is
to accept the persistence of the dark history in which we still largely live. it is to agree that the
outsider will always be a possible victim (and which man is not himself an outsider relative
to someone else?. Racism illustrates, in sum, the inevitable negativity of the condition of the
dominated that is, it illuminates in a certain sense the entire human condition. The anti-racist
struggle, difficult though it is, and always in question, is nevertheless one of the prologues to
the ultimate passage from animosity to humanity . In that sense, we cannot fail to rise to the
racist challenge. However, it remains true that one’s moral conduit only emerges from a choice: one
has to want it. It is a choice among other choices, and always debatable in its foundations and its
consequences. Let us say, broadly speaking, that the choice to conduct oneself morally is the
condition for the establishment of a human order, for which racism is the very
negation . This is almost a redundancy. One cannot found a moral order, let alone a legislative
order, on racism, because racism signifies the exclusion of the other, and his or her subjection to
violence and domination. From an ethical point of view, if one can deploy a little religious language, racism is ‘the
truly capital sin. It is not an accident that almost all of humanity’s spiritual traditions counsels
respect for the weak, for orphans, widows, or strangers. It is not just a question of theoretical morality and
disinterested commandments. Such unanimity in the safeguarding of the other suggests the real utility of such sentiments.
injustice engenders violence and
death . Of course, this is debatable. There are those who think that if one is strong enough, the
All things considered, we have an interest in banishing injustice, because
assault on and oppression of others is permissible. Bur no one is ever sure of remaining the strongest. One day,
perhaps, the roles will be reversed. All unjust society contains within itself the seeds of its
own death. It is probably smarter to treat others with respect so that they treat you with respect. “Recall.” says the Bible, “that
you were once a stranger in Egypt,” which means both that you ought to respect the stranger because you were a stranger yourself and
that you risk becoming one again someday. It is an ethical and a practical appeal—indeed, it is a contract, however implicit it might
be. In short, the refusal of racism is the condition for all theoretical and practical morality because,
in the end, the ethical choice commands the political choice, a just society must be a society
accepted by all. If this contractual principle is not accepted, then only conflict, violence, and
destruction will be our lot. If it is accepted, we can hope someday to live in peace. True, it is a
wager, but the stakes are irresistible.
Plan
The United States federal government should reduce its domestic prison
surveillance by abolishing mandatory minimums for federal criminal
sentences, decriminalizing recreational drug use and preferring alternatives
to imprisonment.
Solvency
SECOND – solvency
The plan’s three-pronged strategy is necessary to reverse mass incarceration
Conyers ‘ 13 [Spring 2013, Representative John Conyers, Jr., represents Michigan's 13th Congressional District and serves as
the Ranking Member of the House Judiciary Committee. Having entered the House of Representatives in 1965, Representative
Conyers is now its second-most senior member. He served as Chairman of the House Committee on Government Operations (now
renamed as the Committee on Oversight and Government Reform) from 1989 until 1994. In 2006, Representative Conyers was elected
by his congressional colleagues to lead, as Chairman, the pivotal House Committee on the Judiciary in the 110th and 111th
Congresses. He is also one of the thirteen founding members of the Congressional Black Caucus (CBC) and now serves as its dean.
Formed in 1969, the CBC was founded to strengthen African-American lawmakers' ability to address the legislative concerns of black
and minority citizens, “POLICY ESSAY: The Incarceration Explosion” 31 Yale L. & Pol'y Rev. 377 accessed from Lexis Nexis]
Introduction The United States has experienced a precipitous rise in its state and federal prison
population over the last forty years. During that period, the number of individuals incarcerated in
our nation has risen from approximately 300,000 to more than 2 million. n1 We now have the highest
incarceration rate in the world, with more than 700 out of every 100,000 Americans behind bars. n2 Our nation's incarceration rate is
roughly 5 times the international average. n3 By comparison, Germany incarcerates 85 per 100,000; France incarcerates 96 per
100,000; and [*378] Canada incarcerates 117 per 100,000. n4 Only Rwanda comes anywhere near the U.S. rate, with 595 per 100,000.
n5 Mass incarceration in the United States has disproportionately impacted minorities, and most
notably African Americans. The incarceration rate among African-American men is more than
3,000 per 100,000 citizens, roughly four times the national average, and roughly six times the rate
among white men. n6 In 2010, African Americans made up 13.6% of the U.S. population, but amounted to thirty-eight percent
of those who are incarcerated. n7 An African-American boy born in 2001 has a 32% chance of serving time in prison at some point in
his life. n8 By comparison, a white male born at the same time would have a 6% chance of being sent to prison. n9 There are certain
regions in our nation where these statistics are even more stark. In at least 15 states, African-American men are imprisoned on drug
charges at a rate from 20-57 times greater than white men. n10 While some have argued that these disparate numbers are the result of
higher crime in African-American communities, that claim lacks evidentiary support. For example, even though only 10% of the adult
African-American population uses illegal drugs (compared with 9% of the adult white population), African Americans are 9 times
more likely than whites to serve prison sentences for drug crimes. n11 This mass incarceration is overincarceration.
Policymakers on both sides of the aisle can agree that America's criminal justice system should be
fair to the participants involved in the system, should increase community security, and should be
cost-effective. However, a criminal justice system based on mass incarceration, in which we lock
up more and more people, and particularly more people of color, with no crime reduction impact,
and at a tremendous financial cost to our federal and state budgets, accomplishes none of those
goals. n12 [*379] The United States must address the problem of mass incarceration, and
particularly the overincarceration of African-American men. This Essay identifies the policies
that have driven incarceration rates to unprecedented levels over the past 40 years. Such policies
include our nation's ongoing "drug war," mandatory minimum sentences, and a number of other
harsh sentencing policies that serve as a system of racial control that hearkens back to the Jim
Crow era. The Essay then proposes a number of reforms that would decrease the rate of incarceration and the system's disparate
treatment of African Americans. Such reforms include strengthening prisoner reentry programs, enacting
laws to limit the severity of punishment for low-level offenses, abolishing mandatory minimums
and other laws that limit judicial discretion, and enacting comprehensive, evidence-based
prevention and intervention programs. I. Causes of the Problem: Why Does the United States Have So Many People,
and So Many African-American People, in Prison? Several factors contribute to these alarmingly high numbers. The single most
significant factor is this country's war on drugs. Since the 1980s, the United States has pursued an
aggressive law enforcement campaign against the use and sale of illegal drugs. n13 From 1980 to 1997,
the rate of incarceration for drug offenses increased nearly tenfold, from 15 per 100,000 adults to 148 per 100,000 adults. n14
Today, nearly half of America's federal inmates are in prison on drug convictions. n15 Although the
stated purpose of this "war on drugs" was race-neutral,
African Americans have been disproportionately
arrested, convicted, and incarcerated on drug charges, both relative to their numbers in the
general population and among drug offenders. n16 A second factor behind rising incarceration
rates is the range of sentencing - policy reforms that have increased the length of time offenders
are serving in prison. The average length of prison sentences has increased by 36% since [*380] 1990.
n17 William J. Stuntz argues in his book, The Collapse of American Criminal Justice, that mandatory minimum sentences,
longer sentences for nonviolent first-time offenders, and "three strikes" laws mandating increased
penalties for repeat offenders have all contributed to this increase.n18 The United States Sentencing
Commission highlighted the multiple ways in which federal mandatory minimum sentences have contributed to the growing federal
prison population. n19 The Commission found that mandatory minimums apply to more offenses,
impose longer terms of imprisonment, and are used more frequently by prosecutors today than
they were 20 years ago. n20 A third factor is the abolition of parole in the federal system and
some states. The Sentencing Reform Act of 1984 abolished parole for federal inmates and modified how much good-time credit
an inmate could earn. n21 Offenders sentenced to incarceration for a federal crime committed after November
1, 1987, are not eligible for parole. The Federal Bureau of Prisons has stated that the abolition of
parole is one cause of the growing federal prison population. n22 Abolishing federal parole means
that prisoners who have been subjected to longer and longer sentences now have to serve all or
nearly all of their sentences. In addition to increasing the prison population, longer prison sentences and the elimination of
parole have also resulted in an aging prison population. According to a report by the Sentencing Project, 1 in 11 prisoners is serving a
life term. n23 A report from the American Civil Liberties Union estimates that, by 2030, there will be more than 400,000 state and
federal prisoners aged 55 and older - meaning that the number of prisoners over 55 years old will exceed one [*381] third of the
overall prison population. n24 Elderly prisoners are approximately twice as expensive to incarcerate as the average prisoner and pose
little danger to society. n25 Fourth, the imposition of disparate penalties for similar crimes has also played a role in increasing
incarceration rates, particularly among African Americans. In 1986, Congress passed the Anti-Drug Abuse Act. n26 Crack cocaine
was a new and growing problem in large U.S. cities in the 1980s, and its wide availability and relatively low cost revolutionized innercity drug markets. n27 Many legislators at that time believed that crack was more dangerous than powder cocaine. n28 In addition,
public outcry about an epidemic of "crack babies," n29 or children who had been exposed to crack in utero, gave rise to the perception
that in-utero exposure to crack cocaine caused more profound developmental difficulties than in-utero exposure to powder cocaine.
n30 In June 1986, public concern further intensified when all American basketball star Len Bias suddenly collapsed in his dormitory
and died. He had been the number two overall pick in the NBA draft, and the nation was shocked. Cocaine was found in Bias's
system. n31 Following the intense public reaction to Bias's death, Congress passed the Anti-Drug Abuse Act of 1986, establishing
mandatory minimum sentences triggered by specific quantities of cocaine and crack cocaine. n32 Because many lawmakers at the
time believed crack cocaine was more dangerous than the powder form of the drug, the 1986 Act imposed penalties for crack that
were 100 times harsher than those for powder cocaine. For example, the Act provided for 5-year mandatory minimum sentences for
individuals convicted of crimes involving [*382] either 500 grams of powder cocaine, or just 5 grams of crack cocaine. n33 Similarly,
the Act provided for 10-year mandatory minimum sentences for individuals convicted of crimes involving either 5,000 grams of
powder cocaine, or just 50 grams of crack cocaine. n34 Certain provisions of the Omnibus Anti-Drug Abuse Act of 1988 further
widened the disparity in drug sentencing by specifying that simple possession of 5 grams or more of crack cocaine be subject to a 5year mandatory minimum sentence and a 20-year maximum sentence. n35 As detailed in the House Judiciary Committee Report on
the Fairness in Cocaine Sentencing Act of 2009, many beliefs about the more severe effects of crack cocaine compared to powder
cocaine have been proven unfounded over the past 20 years. n36 For example, the violence associated with crack - similar to the
violence associated with the trafficking of many other drugs - has been shown to derive from association with the illegal drug market,
rather than from any physiological effects of the crack itself. n37 Moreover, recent data indicates that significantly less traffickingrelated violence is associated with crack than was previously assumed. For example, in 2005, 57.3% of overall crack offenses did not
involve weapons with regard to any participant, 67.6% of crack offenders had no personal weapons involvement, and only 2.9% of
crack offenders actively used a weapon. n38 Scientific and medical research has also found that crack and powder cocaine have
essentially the same pharmacological and physiological effects. In 2002, Dr. Ira J. Chasnoff, President of the Children's Research
Triangle, testified before the United States Sentencing Commission that because crack and powder cocaine are essentially the same
drug, the effects on the fetal brain are the same whether the mother used crack cocaine or powder cocaine. n39 Although many of the
dangers and consequences thought to be associated with crack cocaine did not materialize, the crack cocaine law and other
federal drug laws resulted in dramatic increases in the number of federal drug offenders in prison,
and particularly in the number of African-American men in prison. [*383] On average, African Americans
served almost as much time in federal prison for a drug offense (58.7 months) as whites did for a violent offense (61.7 months),
largely due to sentencing laws such as the 100-to-1 crack-to-powder disparity. n40 Finally, Michelle Alexander explores yet another
critical factor contributing to the United States' high incarceration rate. In her book, The New Jim Crow, Alexander argues that the
mass incarceration of African Americans, and African-American men in particular, serves as a system of racial control similar to Jim
Crow-era laws that followed the abolition of slavery and Reconstruction. n41 She observes that elements of Jim Crow
policies are imbedded in initiatives such as the war on drugs, mandatory minimum sentences, and
other governmental policies that increase incarceration and that are applied to African Americans
and Hispanics in a discriminatory manner. n42 By targeting African-American men through the
war on drugs and its corresponding policies such as mandatory minimums and three strikes, the
U.S. criminal justice system functions as a contemporary system of racial control. What, then, must we
do to fix this broken system? II. Legislative Solutions Congress should pursue various legislative
initiatives to address the dual problems of overincarceration and the system's disparate treatment
of African Americans. A. Eliminate Irrational Disparate Sentencing Penalties for Similar Crimes As
noted in the preceding section, Congress reacted to the problem of cocaine use by devising a sentencing regime that penalized crimes
involving crack cocaine 100 times more harshly than those involving powder cocaine. As a result of this illogical
sentencing system, there has been a dramatic increase in the number of federal drug offenders in
prison, and particularly in the number of African-American men in prison. [*384] In an effort to respond
to this problem, while I was Chairman of the House Judiciary Committee, the Congress passed the Fair Sentencing Act (FSA), which
was signed into law in 2010. n43 This measure reduced the crack-to-powder sentencing disparity from 100-to-1 to 18-to-1. n44 It also
eliminated the 5-year mandatory minimum sentence for the simple possession of 5 grams of crack cocaine. n45 The FSA was a step in
the right direction. 18-to-1 was a legislative compromise, but much more needs to be done. Legislation should be
enacted to eliminate the disparity entirely and to apply the FSA retroactively. B. Offer
Opportunities That Will Reduce Recidivism The current prison population would be significantly
reduced if prisoners who have completed their sentences and are ready to reenter society were
offered opportunities and support to ensure they will not return to prison. For example, the Second Chance
Act n46 is designed to improve outcomes for people returning to communities from prisons and jails. The Act provides transitional
assistance to ex-offenders dealing with the challenges of reentry into the community. The measure authorizes grants to states and local
entities to assist in establishing drug and mental health treatment programs, providing transitional job services and other job training
opportunities, and offering education, housing, and other critical services for formerly imprisoned persons who are returning to the
community.n47 Many treatment programs and support services have been shown to reduce recidivism. n48 Although this legislation
passed in Congress in 2008 with strong bipartisan support, it is currently past due for reauthorization. It is time to reauthorize
the Second Chance Act and properly fund it to provide assistance to more former offenders. C.
Provide Alternatives to Prison Prison should not be the only mechanism for dealing with an
individual who has committed a crime. Laws that provide for alternatives to prison for low-level
offenses, such as possession or use of drugs, would reduce recidivism, [*385] lower incarceration
rates, diminish the severity of the criminal justice system, and reduce the number of guilty pleas
motivated by the possibility of a long mandatory minimum sentence. Alternatives to incarceration
can divert low-level, nonviolent offenders away from prison through drug courts or work
programs. Research has shown that "interventions that follow all evidence-based practices can
achieve recidivism reductions of 30 percent." n49 Not surprisingly, one study has found that investment in these
programs would save taxpayers a considerable amount. n50 Moving low-level, nonviolent offenders from prison to community
supervision would dramatically reduce the prison population, ensure that fewer people recidivate, lower the costs to the corrections
system and American taxpayers, and reduce the social costs of mass incarceration. D. Create Rational Sentencing
Policies Mandatory sentences, long sentences for nonviolent first offenses, and laws mandating
increased penalties for repeat offenders lead to overincarceration. Often, Congress promulgates mandatory
minimum sentences in the heat of political passions. n51 Unfortunately, courts must eventually apply those laws to unrelated crimes
committed much later - without considering the particular circumstances of those later crimes, the backgrounds of the individual
defendants, or their actual roles in the crimes. A minimum sentence depends solely on which statute a person
is found to have violated, rather than a holistic analysis of the facts and circumstances of the
crime. Further, mandatory minimums place the primary sentencing discretion in the hands of one side of an adversarial process - the
prosecution - rather than in the hands of a dispassionate judge. Federal judges raise concerns about being
constrained by unreasonable and unjust mandatory minimum sentences. In one case, n52 a 22-year-old man
served as a middleman in a series of hand-to-hand crack sales in 2010. Over the course of 4 transactions involving a federal informant,
the defendant handed over a total of 88.1 grams, or 3.1 ounces, of crack, for which he earned $ 140. Despite his very minor role in the
transaction, the defendant was convicted of selling more than 28 grams of crack, which automatically triggered the imposition of a 5year mandatory minimum sentence. Lamenting that the proceeding "had all the solemnity of a driver's license renewal and took a
small fraction of the time," Judge Gleeson of the Eastern District of New York nevertheless observed that he was not permitted to
consider the defendant's very limited role in the transaction - let alone the defendant's remorse for the offense or his personal
background - because the prosecutor had charged the defendant with a crime that [*386] called for a mandatory 5-year prison
sentence. n53 Indeed, Judge Gleeson stated in the first sentence of his opinion that the case had "illustrated how mandatory minimum
sentences in drug cases distort the sentencing process and mandate unjust sentences." n54 The practice of enacting legislation that
includes mandatory minimum sentences must stop. Last Congress, Senator Rand Paul (R-Kentucky) successfully modified an
amendment authored by Senator Rob Portman (R-Ohio) to the Food and Drug Administration Safety and Innovation Act that would
have applied harsh mandatory minimum sentences to future offenses involving new synthetic drugs. n55 We need to continue to work
with members of both parties to keep mandatory minimums out of bills. E. Offer Comprehensive, Evidence-Based Prevention and
Intervention Programs Prevention efforts that focus on children and families at risk of entering the criminal justice system offer a key
solution to overincarceration. These programs have been proven not only to benefit children, families, and communities, but also to
greatly reduce criminal justice and social welfare costs to taxpayers. n56 Programs such as teen pregnancy prevention, prenatal care,
new parent training, nurse home visits, Head Start and other early childhood education programs, quality education, after-school
programs, summer recreation and jobs, guaranteed college scholarships, and job-training programs work cost-effectively to reduce
crime by breaking the cycle of criminal justice system involvement. That is why I have joined Representative Robert C. "Bobby" Scott
in introducing the Youth Promise Act. n57 The Youth Promise Act would put evidence-based approaches to crime reduction into
legislative practice. This Act would mobilize community leaders, including law enforcement officials, educators, health and mental
health professionals, and social service providers. These leaders would come together to form PROMISE Coordinating Councils,
which would identify their communities' needs with regard to youth and gang violence and develop plans to address these needs. Their
communities would then be eligible for grants to implement evidence-based strategies aimed at dismantling [*387] what the Children's
Defense Fund calls the "Cradle-to-Prison Pipeline" and putting children on a Cradle-to-College Pipeline instead. n58 Conclusion
Over the last 4 decades, we have seen an unprecedented rise in the prison population and a
disturbing rise in the number of African Americans in prison. As a nation that holds itself out to
the world as the land of the free, the United States cannot continue this unparalleled level of
incarceration. Congress must take thoughtful action now to end overincarceration and its
disparate impact on African Americans.
Federal action is key---federal inmates are the largest population
Flatow 13 – analyst @ Think Progress
(Nicole, “Federal Prison Population Spiked 690 Percent Since 1980,” Think Progress,
http://thinkprogress.org/justice/2013/02/07/1552751/federal-prison-population-spiked-790-percent-since-1980/)//BB
The U.S. federal prison population has increased almost 790 percent since 1980 from about
25,000 inmates to 219,000 in 2012, according to a new Congressional Research Service report. Federal prisons
make up the largest component of a U.S. prison system that dwarfs all others in the
world . The agency tasked with providing policy analysis to Congress attributes the spike to a
host of tough-on-crime reforms that include draconian mandatory minimum sentences, the
elimination of parole for any federal crime committed after 1987, and increasing enforcement by federal
officials:∂ Research by the Urban Institute found that increases in expected time served contributed to half of the prison population
growth between 1998 and 2010. The increase in amount of time inmates were expected to serve was probably partially the result of
inmates receiving longer sentences and partially the result of inmates being required to serve approximately 85% of their sentences
after Congress eliminated parole for federal prisoners.∂ Noting diminishing safety returns in incarcerating nonviolent individuals in
prison for short-term stints, CRS urges Congress to consider repealing or reducing the sentences for
mandatory minimums, repealing federal criminal statutes wholesale, and expanding early release
and probation programs, particularly for nonviolent criminals, which in 2010 made up 93.6 percent of the federal prison
population. Those incarcerated for drug and immigration offenses make up well over half of the
federal prison population.∂ Cash-strapped states overwhelmed by the immense costs of their bloated prisons are
increasingly turning to criminal justice reform that favors alternatives to incarceration. In South
Carolina, a 2010 program to divert more nonviolent prisoners to probation saved the state $3 million in just one year, while providing
the tools for nonviolent offenders to successfully rehabilitate.∂
The federal government has yet to follow
suit , although Senate Judiciary Committee Chairman Patrick Leahy recently called sentencing and drug reform a major priority for
the coming congressional session. And just yesterday, two members of Congress introduced a new measure to regulate marijuana like
alcohol in those states that have legalized it.
State-based strategies will fail without federal leadership grounded in raceconscious reform
Harcourt 11 – Professor of Law and Director, Columbia Center for Contemporary Critical Thought
(Bernard, “Reducing Mass Incarceration – It's Not About "Free-Market Innovation," Grover Norquist!,”
http://balkin.blogspot.com/2011/02/reducing-mass-incarceration-its-not.html)
Some commentators believe that the on-going state budget crises have already triggered a new
climate of bipartisanship on punishment that is likely to reduce prison populations. Others are touting
economic considerations as the path to reform. And, to be sure, we have seen the rate of prison growth plateau with the financial
collapse and even some states reducing their prison populations.∂ But one problem with the embrace of austerity
as
the means to prison reform is that it attributes too much to economics and fails to appreciate the
dynamics that led to the prison excess. Mike Konczal makes the excellent point that the budget crisis alone is not going
to solve the underlying problems—and in fact, may exacerbate them: “During times of budget stress you see an increase in fear among
the general population. So any desire to use the state’s balance sheet as an argument for changing prison policy is going to be offset by
an increase in an xenophobia and retrenchment that expresses itself most forcibly in the language of crime control.” Marie Gottschalk
makes the same point in her work.∂ Deficits
and austerity alone will not bring about reform. There needs
to be federal leadership . The experience of the Great Depression, the New Deal, and 1960s deinstitutionalization
suggest strongly that economic woes alone do not reduce prison population and may in fact increase general
anxiety and fear of crime. The privatization of prisons creates additional lobbying pressure for politicians to maintain current levels of
prison populations. And as we have seen in New York State, the weak economy is actually pushing many counties in the northern part
of the state to explicitly combat prison closings or retrenchment because that is their only source of economic viability. ∂ I would argue
that, if anything, economic logics have facilitated, not hindered, our penal excess in the last forty
years—which is the essential point of my new book, The Illusion of Free Markets: Punishment and the Myth of Natural Order
(Harvard 2011). Our increasing faith in the efficiency of markets has propelled policing and punishment as practically the only space
of competence and efficient government intervention. The consequence, whether intended or not, has been to make it easier to resist
government intervention in the marketplace, but to embrace the criminalization and punishment of anything we can call disorder. It
facilitates passing new criminal statutes and wielding the penal sanction more liberally because, it is illogically believed, that is where
government is necessary, that is where the state can legitimately act, that is the proper and competent sphere of politics. ∂ It is truly
puzzling how a society marked by such strong fear of big government and skepticism of government efficiency and by such
resounding embrace of free market ideals, would paradoxically create the largest government-run prison bureaucracy in the world—in
raw numbers or per capita. It is time to put aside the ideology of self-regulation or free markets, and begin to lead the way toward
addressing this social disaster.∂ The answer is not "free-market innovation," as Grover Norquist suggests in the
National Review. Norquist writes that the only way to reform the prison system to “both keep Americans safe and save money” is if
we “return to conservative principles of local control, performance-based funding, and free-market innovation.” The example Norquist
uses is Texas, where incarceration rates went down 8 percent while the crime rate dropped 6 percent. Those are great statistics, but
what did the "free market" have to do with that? In his own words, Texas took inmates out of prison and “placed them under
community supervision, in drug courts, and in short-term intermediate sanctions and treatment facilities.” That’s not free market
economics (even if there were such a thing as a free market), that’s recognizing full well that the social sphere is fully regulated and
that what we need to do is regulate more wisely. But there is nothing free about it. [Incidentally, this is exactly what was done during
the deinstitutionalization of the 1960s].∂ I mentioned President Kennedy's programs and calls for action to deinstitutionalize mental
health patients in 1963 in the last post and asked whether it would ever be possible to hear a President of the United States say
something similar about mass incarceration today? Hard to imagine, I said. But let me emphasize again, it will not be possible to make
much headway in reducing mass incarceration even with our recession without the kind of political investment, will, and reregulation
that President John F. Kennedy demonstrated in 1963.∂ There is no good reason to leave the problem of mass incarceration to
economic stress on budgets is unlikely to produce
effects without federal leadership and a clear understanding that what we are doing is
reregulating a regulated sphere.∂ In all this, it will be especially important not to replicate the hyperprison by other institutional means, nor to worsen the racial imbalance in our criminal justice
system. We need to avoid compounding, rather then reforming. Mike Konczal draws an excellent parallel to brokeneconomics—especially free market economics. The
windows strategies (another one of my pet peeves). Konczal writes that the dark side of broken-windows is that you may get the worst
of both: “yes, we can criminalize petty early activities and have a massive prison system.” Or, as I argued a few years ago in the
Boston Review, you end up with “both lengthened sentences for hardcore offenders and order-maintenance policing.” We need to
make sure that, in the process of reforming the prison, we don’t compound the prison with other
equally problematic forms of social control.
Don’t conflate our strategy with typical reform measures --- the 1ac is a key
site to establish a decarcerative strategy resulting in policy changes that
challenge the legitimacy of the carceral regime and lead to prison abolition
Sudbury 8 – Professor of Ethnic Studies, Metz Professor of Ethnic Studies at Mills College, leading activist scholar in the
prison abolitionist movement, was a co-founder of Critical Resistance, a national abolitionist organization
(Julia, “Rethinking Global Justice: Black Women Resist the Transnational Prison-Industrial Complex,” Souls: A Critical Journal of
Black Politics, Culture, and Society, Volume 10, Issue 4)
Chronic overcrowding has led to worsening conditions for prisoners. As a result of the unprecedented growth in sentenced
populations, prison authorities have packed three or four prisoners into cells designed for two, and have taken over recreation rooms,
gyms, and rooms designed for programming and turned them into cells, housing prisoners on bunk beds or on the floor. These new
conditions have created challenges for activists, who have found themselves expending time and resources in pressuring prison
authorities to provide every prisoner a bed, or to provide access to basic education programs. As prison populations
continue to swell, anti-prison activists are faced with the limitations of reformist strategies. Gains
temporarily won are swiftly undermined, new “women-centered” prison regimes are replaced with a
focus on cost-efficiency and minimal programming and even changes enforced by legal cases like Shumate vs. Wilson are
subject to backlash and resistance. 19 Of even greater concern is the well-documented tendency of prison
regimes to co-opt reforms and respond to demands for changes in conditions by further expanding
prison budgets. The vulnerability of prison reform efforts to cooption has led Angela Y. Davis to
call for “non-reformist reforms,” reforms that do not lead to bigger and “better”
prisons. 20 Despite the limited long-term impact of human rights advocacy and reforms, building
bridges between prisoners, activists, and family members is an important step toward
challenging the racialized dehumanization that undergirds the logic of
incarceration . In this way, human rights advocacy carried out in solidarity with prisoner activists is
an important component of a radical anti-prison agenda . Ultimately, however, anti-prison
activists aim not to create more humane, culturally sensitive, women-centered prisons, but to dismantle prisons and
enable formerly criminalized people to access services and resources outside the penal system.
After three decades of prison expansion, more and more people are living with criminal convictions and histories of incarceration. In
the U.S., nearly 650,000 people are released from state and federal prisons to the community each year. 21 Organizations of formerly
incarcerated people focus on creating opportunities for former prisoners to survive after release, and on eliminating barriers to reentry,
including extensive discrimination against former felons. The wide array of “post-incarceration sentences” that felons are subjected to
has led activists to declare a “new civil rights movement.” 22 As a class, former prisoners can legally be disenfranchised and denied
rights available to other citizens. While reentry has garnered official attention, with President Bush proposing a $300 million reentry
initiative in his 2004 State of the Union address, anti-prison activists have critiqued this initiative for focusing on faith-based
mentoring, job training, and housing without addressing the endemic discrimination against former prisoners or addressing the
conditions in the communities which receive former prisoners, including racism, poverty, and gender violence. Organizations of exprisoners working to oppose discrimination against former prisoners and felons include All of Us Or None, the Nu Policy Leadership
Group, Sister Outsider and the National Network for Women Prisoners in the U.S., and Justice 4 Women in Canada. All of Us Or
None is described by members as “a national organizing initiative of prisoners, former prisoners and felons, to combat the many forms
of discrimination that we face as the result of felony convictions.” 23 Founded by anti-imperialist and former political prisoner Linda
Evans, and former prisoner and anti-prison activist Dorsey Nunn, and sponsored by the Northern California–based Legal Services for
Prisoners with Children, All of Us Or None works to mobilize former prisoners nationwide and in Toronto, Canada. The
organization's name, from a poem by Marxist playwright Bertold Brecht, invokes the need for solidarity across racial, class, and
gender lines in creating a unified movement of former prisoners. Black women play a leading role in the organization, alongside other
people of color. All of Us Or None focuses its lobbying and campaign work at city, county, and state levels, calling on local
authorities to end discrimination based on felony convictions in public housing, benefits, and employment, to opt out of lifetime
welfare and food stamp bans for felons, and to “ban the box” requiring disclosure of past convictions on applications for public
employment. In addition, the organization calls for guaranteed housing, job training, drug and alcohol treatment, and public assistance
for all newly released prisoners. 24 In the context of the war on drugs, many people with felony convictions also struggle with
addictions. The recovery movement, which is made up of 12-step programs, treatment programs, community recovery centers, and
indigenous healing programs run by and for people in recovery from addiction, offers an alternative response to problem drug use
through programs focusing on spirituality, healing, and fellowship. However, the recovery movement's focus on individual
transformation and accountability for past acts diverges from many anti-prison activists' focus on the harms done to criminalized
communities by interlocking systems of dominance. As a result, anti-prison spaces seldom engage with the recovery movement, or tap
the radical potential of its membership. Breaking with this trend, All of Us Or None has initiated a grassroots organizing effort to
reach out to people in 12-step programs with felony convictions. This work is part of their wider organizing efforts that aim to
mobilize former prisoners as agents of social change. Building on the strengths of identity politics, these organizations suggest that
those who have experienced the prison-industrial complex first-hand may be best placed to provide leadership in dismantling it. As
former prisoners have taken on a wide range of leadership positions across the movement, there has been a shift away from leadership
by white middle-class progressives, and a move to promote the voices of those directly affected by the prison-industrial complex.
Politicians who promote punitive “tough-on-crime” policies rely on racialized controlling images of “the criminal” to inspire fear and
induce compliance among voters. Once dehumanized and depicted as dangerous and beyond rehabilitation, removing people from
communities appears the only logical means of creating safety. Activists who pursue decarceration challenge
stereotypical images of the “criminal” by making visible the human stories of prisoners, with the
goal of demonstrating the inadequacy of incarceration as a response to the complex
interaction of factors that produce harmful acts. Decarceration usually involves targeting a
specific prison population that the public sees as low-risk and arguing for an end to the use
of imprisonment for this population. Decarcerative strategies often involve the promotion
of alternatives to incarceration that are less expensive and more effective than prison and jail. For
example, Proposition 36, the Substance Abuse and Crime Prevention Act, which passed in California in 2000 and allowed first- and
second-time non-violent drug offenders charged with possession to receive substance abuse treatment instead of prison, channels
approximately 35,000 people into treatment annually. 25
Drug law reform is a key area of decarcerative
work . Organizations and campaigns that promote drug law reform include Drop the Rock, a coalition of
youth, former prisoners, criminal justice reformers, artists, civil and labor leaders working to repeal New York's Rockefeller Drug
combines racial justice, economic, and public safety arguments by
demonstrating that the laws have created a pipeline of prisoners of color from New York
Laws. The campaign
City to newly built prisons in rural, mainly white areas represented Republican senators, resulting in a transfer of funding and electoral
influence from communities of color to upstate rural communities. 26 Ultimately, the campaign calls for an end to mandatory
minimum sentencing and the reinstatement of judges' sentencing discretion, a reduction in sentence lengths for drug-related offenses
and the expansion of alternatives, including drug treatment, job training, and education. Former drug war prisoners play a leadership
role in decarcerative efforts in the field of drug policy reform. Kemba Smith, an African–American woman who was sentenced to
serve 24.5 years as a result of her relationship with an abusive partner who was involved in the drug industry, is one potent voice in
opposition to the war on drugs. While she was incarcerated, Smith became an active advocate for herself and other victims of the war
on drugs, securing interviews and feature articles in national media. Ultimately, Smith's case came to represent the failure of
mandatory minimums, and in 2000, following a nation-wide campaign, she and fellow drug war prisoner Dorothy Gaines were
granted clemency by outgoing President Clinton. After her release, Smith founded the Justice for People of Color Project (JPCP),
which aims to empower young people of color to participate in drug policy reform and to promote a reallocation of public
expenditures from incarceration to education. While women like Kemba Smith and Dorothy Gaines have become the human face of
the drug war, prison invisibilizes and renders anonymous hundreds of thousands of drug war prisoners. The organization Families
Against Mandatory Minimums (FAMM) challenges this process of erasure and dehumanization through its “Faces of FAMM” project.
The project invites people in federal and state prisons serving mandatory minimum sentences to submit their cases to a database and
provides online access to their stories and photographs. 27 The “Faces of FAMM” project highlights cases where sentencing
injustices are particularly visible in order to galvanize public support for sentencing reform. At the same time, it dismantles
popular representations of the war on drugs as a necessary protection against dangerous drug
dealers and traffickers, demonstrating that most drug war prisoners are serving long sentences for
low-level, non-violent drug-related activities or for being intimately connected to someone involved in these
activities. Decarcerative work is not limited to drug law reform. Free Battered Women's (FBW) campaign for the release of
incarcerated survivors is another example of decarcerative work. The organization supports women and transgender prisoners
incarcerated for killing or assaulting an abuser in challenging their convictions by demonstrating that they acted in self-defense. Most
recently, FBW secured the release of Flozelle Woodmore, an African–American woman serving a life sentence at CCWF for shooting
her violent partner as an 18 year old. Released in August 2007, after five parole board recommendations for her release were rejected
by Governors Davis and then Schwarzenegger, Woodmore's determined pursuit of justice made visible and ultimately challenged the
racialized politics of gubernatorial parole releases. 28 While the number of women imprisoned for killing or assaulting an abuser is
small—FBW submitted 34 petitions for clemency at its inception in 1991, and continues to fight 23 cases—FBW's campaign for the
release of all incarcerated survivors challenges the mass incarceration of gender-oppressed prisoners on a far larger scale. FBW argues
that experiences of intimate partner violence and abuse contribute to the criminalized activities that lead many women and transgender
people into conflict with the law, including those imprisoned on drug or property charges, and calls for the release of all incarcerated
survivors. Starting with a population generally viewed with sympathy—survivors of intimate partner violence—FBW generates a
radical critique of both state and interpersonal violence, arguing that “the violence and control used by the state against people in
prison mirrors the dynamics of battering that many incarcerated survivors have experienced in their intimate relationships and/or as
children.” 29 In theorizing the intersections of racialized state violence and gendered interpersonal
violence, FBW lays the groundwork for a broader abolitionist agenda that refutes the legitimacy
of incarceration as a response to deep-rooted social inequalities based on interlocking systems of
oppression. By gradually shrinking the prison system, Black women activists involved in
decarcerative work hope to erode the public's reliance on the idea of imprisonment as a
commonsense response to a wide range of social ills. At the other end of anti-expansionist work are activists who
take a more confrontational approach. By starving correctional budgets of funds to continue building more prisons and jails, they hope
to force politicians to embrace less expensive and more effective alternatives to incarceration. Prison moratorium organizing aims to
stop construction of new prisons and jails. Unlike campaigns against prison privatization, which oppose prison-profiteering by private
corporations, and seek to return imprisonment to the public sector, prison moratorium work opposes all new prison construction,
public or private. In New York, the Brooklyn-based Prison Moratorium Project (PMP), co-founded by former prisoner Eddie Ellis and
led by young women and gender non-conforming people of color, does this work through popular education and mass campaigns
against prison expansion. Focusing on youth as a force for social change, New York's PMP uses compilations of progressive hip hop
and rap artists to spread a critical analysis of the prison-industrial complex and its impact on people of color. PMP's strategies have
been effective; for example, in 2002 the organization, as part of the Justice 4 Youth Coalition, succeeded in lobbying the New York
Department of Juvenile Justice to redirect $53 million designated for expansion in Brooklyn and the Bronx. 30 PMP has also worked
to make visible the connections between underfunding, policing of schools, and youth incarceration through their campaign “Stop the
School-to-Prison Pipeline.” By demonstrating how zero tolerance policies and increased policing and use of surveillance technology
in schools, combined with underfunded classrooms and overstretched teachers, has led to the criminalization of young people of color
and the production of adult prisoners, PMP argues for a reprioritization of public spending from the criminal justice system to schools
and alternatives to incarceration. 31 Moratorium work often involves campaigns to prevent the construction of a specific prison or jail.
In Toronto, for example, the Prisoner Justice Action Committee formed the “81 Reasons” campaign, a
multiracial collaboration of experienced anti-prison activists, youth and student organizers ,
in response to proposals to build a youth “superjail” in Brampton, a suburb of Toronto. 32 The campaign
combined popular education on injustices in the juvenile system, including the disproportionate incarceration
of Black and Aboriginal youth, with an exercise in popular democracy that invited young people to decide
themselves how they would spend the $81 million slated for the jail. Campaigners mobilized
public concerns about spending cuts in other areas, including health care and education, to create
pressure on the provincial government to look into less expensive and less punitive alternatives to
incarceration for youth. While this campaign did not ultimately prevent the construction of the youth jail, the size of the proposed
facility was reduced. More importantly, the campaign built a grassroots multiracial antiprison youth
movement and raised public awareness of the social and economic costs of incarceration.
Moratorium campaigns face tough opposition from advocates who believe that building prisons stimulates economic development for
struggling rural towns. Prisons are “sold” to rural towns that have suffered economic decline in the face of global competition,
closures of local factories, and decline of small farms. In the context of economic stagnation, prisons are touted as providing stable,
well-paying, unionized jobs, providing property and sales taxes and boosting real estate markets. The California Prison Moratorium
Project has worked to challenge these assertions by documenting the actual economic, environmental, and social impact of prison
construction in California's Central Valley prison towns. According to California PMP: We consider prisons to be a form of
environmental injustice. They are normally built in economically depressed communities that eagerly anticipate economic prosperity.
Like any toxic industry, prisons affect the quality of local schools, roads, water, air, land, and natural habitats. 33 California PMP
opposes prison construction at a local level by building multiracial coalitions of local residents, farm workers, labor organizers, antiprison activists, and former prisoners and their families to reject the visions of prison as a panacea for economic decline. 34 In the
Californian context, where most new prisons are built in predominantly Latino/a communities and absorb land and water previously
used for agriculture, PMP facilitates communication and solidarity between Latino/a farm worker communities, and urban Black and
Latino/a prisoners in promoting alternative forms of economic development that do not rely on mass incarceration. Scholar-activist
Ruth Wilson Gilmore's research on the political economy of prisons in California has been critical in providing evidence of the
detrimental impact of prisons on local residents and the environment. 35 As an active member of CPMP, Gilmore's work is deeply
rooted in anti-prison activism and in turn informs the work of other activists, demonstrating the important relationship between Black
women's activist scholarship and the anti-prison movement. 36 Many anti-prison activists view campaigns for
decarceration or moratorium as building blocks toward the ultimate goal of abolition. These
practical actions promise short and medium-term successes that are essential markers on the
road to long-term transformation. However, abolitionists believe that like slavery, the prison-industrial complex
is a system of racialized state violence that cannot be “fixed.” The
contemporary prison abolitionist movement in
the U.S. and Canada dates to the 1970s, when political prisoners like Angela Y. Davis and Assata
Shakur, in conjunction with other radical activists and scholars in the U.S., Canada, and Europe,
began to call for the dismantling of prisons. 38 The explosion in political prisoners, fuelled by the FBI's Counter
Intelligence Program (COINTELPRO) and targeting of Black liberation, American Indian and Puerto Rican independence movements
in the U.S. and First Nations resistance in Canada as “threats” to national security, fed into an understanding of the role of the prison
in perpetuating state repression against insurgent communities. 39 The new anti-prison politics were also shaped by a decade of
prisoner litigation and radical prison uprisings, including the brutally crushed Attica Rebellion. These “common” prisoners,
predominantly working-class people of color imprisoned for everyday acts of survival, challenged
the state's legitimacy
by declaring imprisonment a form of cruel and unusual punishment and confronting the brute
force of state power. 40 By adopting the term “abolition” activists drew deliberate links between the
dismantling of prisons and the abolition of slavery. Through historical excavations, the “new abolitionists”
identified the abolition of prisons as the logical completion of the unfinished liberation marked by the 13th Amendment to the United
States Constitution, which regulated, rather than ended, slavery. 41 Organizations that actively promote dialogue about what abolition
means and how it can translate into concrete action include Critical Resistance (CR), New York's Prison Moratorium Project, Justice
Now, California Coalition for Women Prisoners, Free Battered Women, and the Prison Activist Resource Center in the U.S. and the
Prisoner Justice Action Committee (Toronto), the Prisoners' Justice Day Committee (Vancouver) and Joint Action in Canada. CR was
founded in 1998 by a group of Bay Area activists including former political prisoner and scholar-activist Angela Y. Davis. Initially,
CR focused on popular education and movement building, coordinating large conferences where diverse organizations could generate
collective alternatives to the prison-industrial complex. Later work has included campaigns against prison construction in California's
Central Valley and solidarity work with imprisoned Katrina survivors. CR describes abolition as: [A] political vision that seeks to
eliminate the need for prisons, policing, and surveillance by creating sustainable alternatives to punishment and imprisonment … .
An abolitionist vision means that we must build models today that can represent how we want to
live in the future. It means developing practical strategies for taking small steps that move
us toward making our dreams real and that lead the average person to believe that things really
could be different. It means living this vision in our daily lives. 42 In this sense, prison
abolitionists are tasked with a dual burden: first, transforming people's consciousness so that they
can believe that a world without prisons is possible, and second, taking practical steps to
oppose the prison-industrial complex . Making abolition more than a utopian vision requires
practical steps toward this long-term goal . CR describes four steps that activists can get
involved in: shrinking the system , creating alternatives , shifting public opinion and public
policy , and building leadership among those directly impacted by the prison-industrial complex. 43 Since its inception in the San
Francisco Bay Area, Critical Resistance has become a national organization with chapters in Baltimore, Chicago, Gainesville, Los
Angeles, New Orleans, New York, Tampa/St. Petersburg, and Washington, D.C. As such, CR has played a critical role in reinvigorating abolitionist politics in the U.S. This work is rooted in the radical praxis of Black women and transgender activists.
Impact calculus
THIRD – impact calculus
Prioritize empowerment of marginalized communities, even when with faced
with extinction---this radical break from ‘business as usual’ is critical to
1-Re-establish systems of value
2- Stop inevitable destruction of the planet
Pinkard 13 - pastor, teacher, and healer in Oakland, California
(Lynice, “Revolutionary Suicide: Risking Everything to Transform Society and Live Fully”, Tikkun, 28.4, doi: 10.1215/088799822367496)
I’d like to present an alternative to conventional identity politics, one that requires that we
understand the way that capitalism itself has grown out of a very particular kind of identity politics — white supremacy — aimed at
securing “special benefits” for one group of people. It is not sufficient to speak only of identities of race, class, and gender. I believe we must also
speak of identities in relation to domination. To what extent does any one of us identify with the forces
of domination and participate in relations that reinforce that domination and the exploitation that
goes with it? In what ways and to what extent are we wedded to our own upward mobility, financial security, good reputation, and ability to “win
friends and influence people” in positions of power? Or conversely, do we identify (not wish to identify or pretend to identify but actually
identify by putting our lives on the line) with efforts to reverse patterns of domination, empower
people on the margins (even when we are not on the margins ourselves), and seek healthy ,
sustainable relations ? When we consider our identities in relation to domination, we realize the
manifold ways in which we have structured our lives and desires in support of the very economic
and social system that is dominating us. To shake free of this cycle, we need to embrace a radical
break from business as usual. We need to commit revolutionary suicide. By this I mean not the
killing of our bodies but the destruction of our attachments to security, status, wealth, and power.
These attachments prevent us from becoming spiritually and politically alive. They prevent us
from changing the violent structure of the society in which we live. Revolutionary suicide means
living out our commitments, even when that means risking death . When Huey Percy Newton, the cofounder of
the Black Panther Party, called us to “revolutionary suicide,” it appears that he was making the same appeal as Jesus of Nazareth, who admonished,
“Those who seek to save their lives will lose them, and those who lose their lives for the sake of
[the planet] will save them.” Essentially, both movement founders are saying the same thing. Salvation is not an
individual matter. It entails saving, delivering, rescuing an entire civilization. This cannot be just another day
at the bargain counter. The salvation of an entire planet requires a total risk of everything — of you,
of me, of unyielding people everywhere, for all time. This is what revolutionary suicide is. The cost of
revolutionary change is people’s willingness to pay with their own lives. This is what
Rachel Corrie knew when she, determined to prevent a Palestinian home in Rafah from being
demolished, refused to move and was killed by an Israeli army bulldozer in the Gaza Strip. This
is what Daniel Ellsberg knew when he made public the Pentagon Papers. It’s what Oscar
Schindler knew when he rescued over 1,100 Jews from Nazi concentration camps, what
subversive Hutus knew when they risked their lives to rescue Tutsis in the Rwandan genocide.
This call may sound extreme at first, but an unflinching look at the structure of our society reveals
why nothing less is enough . Before returning to the question of revolutionary suicide and what it might mean in each of our lives,
let’s look at what we’re up against.
A life secured by a refusal to challenge domination is not worth living—such
an existence is only a prop for a system of exploitation that destroys the
possibility of valuable connections to other people
Pinkard 13 - pastor, teacher, and healer in Oakland, California
(Lynice, “Revolutionary Suicide: Risking Everything to Transform Society and Live Fully”, Tikkun, 28.4, doi: 10.1215/088799822367496)
I call this set of spiritual beliefs and practices “revolutionary suicide.” This is resistance with
meaning: creation and action emerging out of the struggle for life. It is not the supplication of
protest, the futile hope for a better day, the search for love and self in the faces of children, the self-indulgent staking out of a
political position, or the reckless descent into disorder. It is self-determination with integrity. It is the assertion of life
without apology. It is the creation that is disturbing by its nature. It is the willingness to defend
what we love — life itself — with our lives. Mikhail Bakunin, in his Revolutionary Catechism, reminds us that “ the first
lesson a revolutionary must learn is that [she] is a doomed [woman].” Until a revolutionary
understands this, she does not grasp the essential meaning of her life. Once a revolutionary has reckoned with the
fact that she is a dead person, she can get on with the business of asking who she is going to be now and how
she will live out her new life. In effect, this recognition, acceptance, and engagement of death enables
us collectively to move away from personal suicide — the taking of our own lives in reaction to
social, political, and economic conditions that leech the meaning from life, devastate
relationships, and lead us to despair. We move away from apathy, fear, despair, and inertia, and
we move away from their resultant practices of addiction, consumption, violence, greed, and selfmurder to revolutionary suicide. When we have truly reckoned with the cost of being fully alive
— deciding to love life no matter what — and we are willing to pay that cost, then and only then
can we, intrepid and relentless, refuse to be props for the systems of exploitation, refuse to live
extravagantly on the backs of poor people everywhere, refuse to be employed by death-dealing
institutions, refuse to be “good insurance risks,” refuse to be saddled with credit worthiness that enables us to accumulate debt that fuels an
economic death system, and refuse to pay war taxes. Then we will refuse a living death , even if this means
being killed by the forces we are opposing because we deem it better to oppose
deathly forces than to endure them . And then, even if we must die, in Alice Walker’s words, we will
be “qualified to live among [our] dead.” I do not have a death wish. I am not defeatist or
fatalistic. I must point out, though, that it is way past time for us, all of us who are long on criticism but short on commitment, to ante up and kick in.
The Good News is that this work is not new. We are part of a long tradition of revolutionary struggle that is often paid for with one’s own life. This is
the essence of revolutionary suicide. Any people who struggle against a brutal and
powerful force risk death in order to reach for a more liberated life . “Revolutionary suicide” is
what Jesus meant when he said, “No one takes my life; I lay it down.” This
is what Dietrich Bonhoeffer meant when he
decided to resist the Nazis, confront the state church with its hypocrisy, complicity, and
complacency, establish an underground resistance movement, and plot to assassinate Hitler.
Bonhoeffer made those choices even though he knew they would cost him his life, and even though he believed that any violence against another person
is a sin. He
was plotting about revolutionary suicide when he became willing to lose even his own
“identity” as a righteous man. He was talking about revolutionary suicide when he coined the term “costly grace.” This is what
Fannie Lou Hamer meant when she pushed past fire hoses, attack dogs, kidnappings, beatings, and jail
sentences to demand a social revolution at the cost of her own life. This is what Oscar Romero
meant when he said, “You may take my life, but I will rise again in my people.” This is what Mamie
Bradley meant when she said, “They killed my son [Emmett Till], but I don’t have a minute to hate; I will work
for justice for the rest of my life.” This is what Martin Luther King meant when he spoke out boldly against the three evils of American
society, “racism, economic exploitation, and militarism,” and then, fully counting the cost, said: I don’t know what will happen now. We’ve got some
difficult days ahead. But it doesn’t really matter to me now. . . . I don’t mind. Like anybody, I would like to live — a long life; longevity has its place. But
I’m not concerned about that now. I’m not fearing any man. I just want to do God’s will. . . . I’ve seen the Promised Land. I may not get there with you.
This is what Malcolm X meant when he said, “If you’re
not ready to die for freedom, take the word ‘freedom’ out of your vocabulary.” This is what he meant when
But I know that we, as a people, will get to the Promised Land.
he returned from a pilgrimage to Mecca and embraced a universal humanism, renouncing separatist theology even though he knew that in the Nation of
Islam that made him “a marked man.” This
is the courage, the integrity of revolutionary suicide. So What Do
We Do? We stand on the shoulders of those living and dead who committed revolutionary suicide, and the late June Jordan calls us to action,
of us have not died; what will we do, those of us who remain?” There are no blueprints. And
there is no space of purity from which to act. We must begin imperfectly from within the
messiness , in ways that respond to and engage with our concrete and particular
contexts and circumstances . So I cannot offer prescriptions, but I can offer a reflection on how I have been attempting to grapple
saying, “Some
with some of these issues in my own life. I engage in a spiritual/pedagogical practice and community of accountability and support called Recovery from
the Dominant Culture, which is based on a twelve-step model. This practice helps me and other participants recognize our addictions to the dominant
Recovery from the Dominant Culture
emphasizes the recursive relationship between our individual lives and the institutions that
structure them. Hence, the work is not only about personal transformation but also about the
transformation of society, i.e., healing the culture that makes us sick by contributing our efforts to projects that embody an alternative to the
culture and dominant ways of being and work on getting free from them. Crucially,
addictive processes of the dominant culture. My Recovery from the Dominant Culture program has enabled me to understand more fully how I, like all of
us, have been shaped by the values, beliefs, habits, and desires that make up the culture in which we live. I recognize that
I have paid a high
price for the privileges that I enjoy as a citizen of this superpower. That price is my full
capacity for aliveness and humanity. I am no longer willing to pay that price. I am
staking my life on the promise that more aliveness is possible . As a result of my recovery work, I have
had to accept and come to appreciate the fact that I am an outsider within my own home, in conflict with the institutional church and, indeed, the society
at large. I have had to release many of the benefits and protections that come with “playing by the rules” and remaining non-threatening. This is not
something I just willed one morning. Rather this has been an ongoing process connected to a search for meaning, connection, and freedom that insists on
an unflinching commitment to integrity, i.e., radical attempts to align my life and my actions with what I value and believe. For example, I left my job as
a senior pastor of a mainline church and, along with that, I left a secure salary, health benefits, public recognition and acclaim, and a respected platform
from which to speak. My role as a “professional holy person” was in conflict with my soul — indeed, my yearning for an authentic, prophetic,
transgressive, and free life. My search for deeper spiritual liberation has led me, over and over, through what Jesus calls finding life, losing life, and
finding life again. This has not been easy. Some days it feels like I am breaking. The challenge is to remember that I am being broken into newness and
freedom. This recovery process actually brings relief. I do not have to secure sufficient income or property; in fact, the acquisition of property and money
restrict my freedom and mobility and disturb my peace of mind. I do not have to secure status, influence, and control over my life or over others’ lives. I
do not have to secure my own self-interests through personal power and lack of vulnerability. In reality, recovery reveals that autonomy, though prized by
the dominant culture, often forces me to bow down before the idol of my own will, keeping me enslaved to the human tendency to dominate others in
order to get my own way. Healthy,
sustainable relationships rooted in a shared commitment to grappling
with our identities in relation to domination are the bedrock of principled coalitions and mass
solidarity movements. These coalitions and movements enable us to cultivate an alternative
consciousness, and that new consciousness leads to a radically alternative world community: No
more us and them. No more save us by abandoning them. No more heal us by injuring them. No
more free us by binding them. No more enliven us by killing them. No more! Human life lived in God’s image,
lived fully, is found in the crossing over from ourselves to the well-being of others — that is what love is. When we cross over from power to weakness,
from strength to vulnerability, from inside to outside, from up to down, we rise above ourselves, we transcend ourselves. In other words, the
descent into death of our own self-interest — this revolutionary suicide — is actually a
rising, a resurrection . If we are truly to embody revolutionary suicide, we must recognize and
embrace the fact that there is more than one way to “lose our lives .” While it is radical to
die for the cause of freedom, it is also radical to live for the cause of freedom — to live in such a
way that we die to the destructive lives we have been living; we die to our lives as we
know them. Whether one feels this tearing and release — a crucifixion and resurrection of the self — as the
work of demons or of angels depends on one’s openness and commitment to transformation and
revolution.
Reject ‘hotspot’ impacts in favor of working against the ongoing extinctions
of people of color
Omolade 89
[1989, Barbara Omolade is a historian of black women for the past twenty years and an organizer in both the women’s and civil
rights/black power movements, “We Speak for the Planet” in “Rocking the ship of state : toward a feminist peace politics”, pp. 172176]
efforts by Soviet leader Mikhail Gorbachev and President Ronald Reagan to limit nuclear testing, stockpiling, and
weaponry, while still protecting their own arsenals and selling arms to countries and factions around the world, vividly demonstrate how "peace"
can become an abstract concept within a culture of war. Many peace activists are similarly blind
Recent
to the constant wars and threats of war being waged against people of color and the planet by
those who march for "peace" and by those they march against. These pacifists, like Gorbachev
and Reagan, frequently want people of color to fear what they fear and define peace as they
define it. They are unmindful that our lands and peoples have already been and are being
destroyed as part of the " final solution " of the " color line." It is difficult to persuade the
remnants of Native American tribes, the starving of African deserts, and the victims of the
Cambodian "killing fields" that nuclear war is the major danger to human life on the planet and
that only a nuclear "winter" embodies fear and futurelessness for humanity. The peace movement
suffers greatly from its lack of a historical and holistic perspective, practice, and vision that
include the voices and experiences of people of color; the movement's goals and messages have
therefore been easily coopted and expropriated by world leaders who share the same culture of
racial dominance and arrogance. The peace movement's racist blinders have divorced peace
from freedom, from feminism, from education reform, from legal rights, from human rights, from
international alliances and friendships, from national liberation, from the particular (for example, black
female, Native American male) and the general (human being). Nevertheless, social movements such as the civil rights-black power
movement in the United States have always demanded peace with justice, with liberation, and with social
and economic reconstruction and cultural freedom at home and abroad. The integration of our past and our present
holocausts and our struggle to define our own lives and have our basic needs met are at the
core of the inseparable struggles for world peace and social betterment. The Achilles heel of the
organized peace movement in this country has always been its whiteness. In this multi-racial and racist society, no allwhite movement can have the strength to bring about basic
changes. It is axiomatic that basic changes do not occur in any society unless the people who are oppressed move to make them occur. In our society it is people of color who are
the most oppressed. Indeed our entire history teaches us that when people of color have organized and struggled-most especially, because of their particular history, Black peoplehave moved in a more humane direction as a society, toward a better life for all people.1 Western man's whiteness, imagination, enlightened science, and
movements
toward peace have developed from a culture and history mobilized against women of
color . The political advancements of white men have grown directly from the devastation
and holocaust of people of color and our lands . This technological and material progress has been in direct proportion to the
the dayto- day survival, political struggles, and rising up of women of color,
reveal both complex resistance to holocaust and undevelopment and
often conflicted responses to the military and war. The Holocausts Women of color are survivors of
undevelopment of women of color. Yet
especially black women in the United States,
and remain casualties of holocausts , and we are direct victims of war -that is, of open armed conflict
women of color were not soldiers, nor did we trade animal
pelts or slaves to the white man for guns, nor did we sell or lease our lands to the white man for
wealth. Most men and women of color resisted and fought back , were slaughtered ,
enslaved , and force marched into plantation labor camps to serve the white masters of
war and to build their empires and war machines. People of color were and are victims of
holocausts-that is, of great and widespread destruction, usually by fire. The world as we knew and
created it was destroyed in a continual scorched earth policy of the white man. The experience of Jews and other Europeans
between countries or between factions within the same country. But
under the Nazis can teach us the value of understanding the totality of destructive intent, the extensiveness of torture, and the demonical apparatus of war aimed at the human spirit.
A Jewish father pushed his daughter from the lines of certain death at Auschwitz and said, "You will be a remembrance-You tell the story. You survive." She lived. He died. Many
have criticized the Jews for forcing non-Jews to remember the 6 million Jews who died under the Nazis and for etching the names Auschwitz and Buchenwald, Terezin and
women of color, we, too, are "remembrances" of all the holocausts against the people
of the world. We must remember the names of concentration camps such as Jesus, Justice,
Brotherhood, and Integrity, ships that carried millions of African men, women, and children
chained and brutalized across the ocean to the "New World." We must remember the Arawaks,
the Taino, the Chickasaw, the Choctaw, the Narragansett, the Montauk, the Delaware, and the
other Native American names of thousands of U.S. towns that stand for tribes of people who are
no more. We must remember the holocausts visited against the Hawaiians, the aboriginal peoples
of Australia, the Pacific Island peoples, and the women and children of Hiroshima and Nagasaki.
We must remember the slaughter of men and women at Sharpeville, the children of Soweto,
and the men of Attica. We must never, ever, forget the children disfigured, the men
Warsaw in our minds. Yet as
maimed, and the women broken in our holocausts-we must remember the names, the
numbers, the faces, and the stories and teach them to our children and our children's children so
the world can never forget our suffering and our courage. Whereas the particularity of the Jewish holocaust under the Nazis is over, our
holocausts continue . We are the madres locos (crazy mothers) in the Argentinian square silently
demanding news of our missing kin from the fascists who rule. We are the children of
El Salvador who see our mothers and fathers shot in front of our eyes. We are the Palestinian and
Lebanese women and children overrun by Israeli, Lebanese, and U.S. soldiers. We are the women
and children of the bantustans and refugee camps and the prisoners of Robbin Island. We are the
starving in the Sahel, the poor in Brazil, the sterilized in Puerto Rico. We are the brothers and sisters of Grenada who
carry the seeds of the New Jewel Movement in our hearts, not daring to speak of it with our lipsyet. Our holocaust is South Africa ruled by men who loved Adolf Hitler, who have
developed the Nazi techniques of terror to more sophisticated levels. Passes replace the Nazi badges and stars. Skin color is the ultimate badge of persecution. Forced removals of
women, children, and the elderly-the "useless appendages of South Africa"-into barren, arid bantustans without resources for survival have replaced the need for concentration
camps. Black sex-segregated barracks and cells attached to work sites achieve two objectives: The work camps destroy black family and community life, a presumed source of
resistance, and attempt to create human automatons whose purpose is to serve the South African state's drive toward wealth and hegemony. Like other fascist regimes, South
Africa disallows any democratic rights to black people; they are denied the right to vote, to dissent, to peaceful assembly, to free speech, and to political representation. The regime
has all the typical Nazi-like political apparatus: house arrests of dissenters such as Winnie Mandela; prison murder of protestors such as Stephen Biko; penal colonies such as
Robbin Island. Black people, especially children, are routinely arrested without cause, detained without limits, and confronted with the economic and social disparities of a nation
built around racial separation. Legally and economically, South African apartheid is structural and institutionalized racial war. The Organization of African Unity's regional
intergovernmental meeting in 1984 in Tanzania was called to review and appraise the achievements of the United Nations Decade for Women. The meeting considered South
Africa's racist apartheid regime a peace issue. The "regime is an affront to the dignity of all Africans on the continent and a stark reminder of the absence of equality and peace,
representing the worst form of institutionalized oppression and strife." Pacifists such as Martin Luther King, Jr. and Mahatma Gandhi who have used nonviolent resistance charged
that those who used violence to obtain justice were just as evil as their oppressors. Yet all successful revolutionary movements have used organized violence. This is especially true
of national liberation movements that have obtained state power and reorganized the institutions of their nations for the benefit of the people. If men and women in South Africa do
not use organized violence, they could remain in the permanent violent state of the slave. Could it be that pacifism and nonviolence cannot become a way of life for the oppressed?
Are they only tactics with specific and limited use for protecting people from further violence? For most people in the developing communities and the developing world consistent
nonviolence is a luxury; it presumes that those who have and use nonviolent weapons will refrain from using them long enough for nonviolent resisters to win political battles. To
survive, peoples in developing countries must use a varied repertoire of issues, tactics, and approaches. Sometimes arms are needed to defeat apartheid and defend freedom in
South Africa; sometimes nonviolent demonstrations for justice are the appropriate strategy for protesting the shooting of black teenagers by a white man, such as happened in New
Peace is not merely an absence of 'conflict that enables white middleclass comfort,
nor is it simply resistance to nuclear war and war machinery. The litany of "you will be blown up,
too" directed by a white man to a black woman obscures the permanency and institutionalization
of war, the violence and holocaust that people of color face daily. Unfortunately, the holocaust does not
only refer to the mass murder of Jews, Christians, and atheists during the Nazi regime; it also refers
to the permanent institutionalization of war that is part of every fascist and racist regime.
The holocaust lives. It is a threat to world peace as pervasive and thorough as nuclear war.
York City.
CASE EXTENSIONS
UQ
Incarceration rates are increasing
Nauman 13 - J.D. University of Florida Levin College of Law; B.A. 2008, University of Florida
Steven Nauman, 5/1/2013, “Brown v. Plata: Renewing the Call to End Mandatory Minimum Sentencing”,
http://dl2af5jf3e.search.serialssolutions.com/?ctx_ver=Z39.88-2004&ctx_enc=info%3Aofi%2Fenc%3AUTF8&rfr_id=info:sid/summon.serialssolutions.com&rft_val_fmt=info:ofi/fmt:kev:mtx:journal&rft.genre=article&rft.atitle=Brown+v.+Pl
ata%3A+renewing+the+call+to+end+mandatory+minimum+sentencing&rft.jtitle=Florida+Law+Review&rft.au=Nauman%2C+Steve
n&rft.date=2013-05-01&rft.pub=University+of+Florida&rft.issn=10454241&rft.volume=65&rft.issue=3&rft.spage=855&rft.externalDBID=BSHEE&rft.externalDocID=354876378, 7/6/2015, BD
Americans enjoy being the best. And if there is one thing the United∂ States does better than
anyone else in the world, it is imprisoning its∂ people. By now the statistics are indisputably clear,
and have been the∂ subject of myriad studies, yet they bear repeating. Between 1980 and∂ 2009, the total number of
inmates incarcerated in state and federal∂ prison facilities skyrocketed, increasing by
approximately 361%;' o the∂ total U.S. population only grew approximately 35% during the same∂
time period.' In 2010, the total number of adults under some form of∂ correctional supervision-prison, jail, pretrial detention,
parole,∂ probation, or community control-totaled 7.1 million, approximately∂ 2.3% of the country's population.1 2 The total number of
The proportion of Americans sitting in cells far
surpasses that of any∂ other country in the world. Russia and China onli imprison 568 and 122∂ criminals per
100,000 citizens, respectively.'1 4 The United States'∂ incarceration rate of 743 inmates per 100,000
citizens, therefore, exceeds the incarceration rates of Russia and China combined."s The∂ highest
state and∂ federal prisoners alone was more than 1.5 million.113∂
incarceration rates in Europe are found in the former Sovietbloc∂ states Belarus, Ukraine, Latvia, Lithuania, and Estonia with 381 ∂
338, 314, 276, and 254 inmates per 100,000 citizens, respectively.'1∂ Western countries such as the United Kingdom, France,
Germany,∂ Spain, and Italy also imprison at only a fraction of the rate that the∂ United States does. "∂ 7 With a total of 2.29 million
inmates (including∂ pretrial detainees) at the end of 2009, the United States houses almost∂ half of the world's
sentenced prisoners. 1 8 Indeed, if incarceration were∂ an Olympic event, the United States would
win gold.' 19∂ As a result of our prison preeminence, it should be no surprise, then,∂ that the United States suffers from a prisonovercrowding crisis. At the∂ end of 2008, the federal prison system was operating at 135%∂
capacity.120 At the same time, twenty-eight states were operating at over∂ 100% capacity, with
eleven others operating between 90% and 100%∂ capacity. 21 These numbers are a sharp increase from the capacity rates ∂ reported
eight years earlier; in 2000, states reported capacity rates that were, on average, 10%-14% lower than in 2008.122 Local jails are also∂
experiencing the same misfortune. Of the fifty counties jailing the∂ largest number of individuals in the United States in 2008,
seventeen∂ operated at over 100% capacity.123 An additional sixteen counties∂ operated between 90% and 100% capacity.124
Again, these rates can∂ only be expected to increase; considering the rate at which we
imprison,∂ overcrowding is inevitable.
Federal incarceration is the largest incarceration force and is outpacing
American population growth
Hamilton, Criminal Law Scholar, University of Houston Law Center; J.D., The University of Texas School of Law; Ph.D., The
University of Texas at Austin, 19 April 2014
(Melissa, “PRISON-BY-DEFAULT: CHALLENGING THE FEDERAL SENTENCING POLICY’S PRESUMPTION OF
INCARCERATION”, pg 1278-1280, jstor)
The situation has led critics to declare that the United States is a country of “mass incarceration.”36 While certainly the
states collectively are mainly responsible,37 federal sentencing policy is also a major contributor
to the problem of mass incarceration. The federal government in recent decades has
achieved a record every year for the number of people incarcerated in its prisons. 38
Figure 2 graphically represents the number of sentenced prisoners in the custody of federal authorities over time. By
the end of
2011, there were almost 200,000 sentenced inmates in the federal system. The increase in
numbers of defendants sentenced is not explained merely by a growing general population. Figure 3
shows the increasing rate of persons sentenced to prison in the federal system as a measure of the
overall national population. Clearly, federal incarceration has far outpaced population growth in
America. The federal justice system’s contribution to mass incarceration in the country is evident,
as well, in the fact that it now comprises the largest prisoner population in the country, despite the
expectation in our federalist system that the states are the primary criminal justice jurisdictions.42
Figure 4 presents a comparative ranking of the top twelve prison populations in America
Overcrowding is high and increasing now – the plan reverses this
Samuels et al. 13 (Julie Samuels, MPP from the Graduate School of Public Policy, University of California at Berkeley,
“Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost of the Federal Prison System”, Urban Institute Justice Policy
Center)
Federal prisons are currently operating at between 35 and 40 percent above their rated capacity;
this∂ overcrowding is greater in high-security facilities, which, in FY 2012, were operating at 51
percent∂ over capacity, and medium-security facilities, which were operating at 47 percent over
capacity. In∂ both medium- and high-security facilities, most inmates have histories of violence.8∂ This crowding is∂
projected to continue to grow, with the federal prison system over capacity by at least 50,000∂
inmates each year through 2020.9∂ Absent any new policy changes (including bringing new prisons∂ online),
we estimate overcrowding to rise to 55 percent by 2023.∂ Prison staffing has not kept up with
population growth. The ratio of inmates to staff has∂ grown from four to one in FY 2000 to a projected five to one in FY
2014.10 The US Bureau of∂ Prisons (BOP) has found that high inmate-to-staff ratios are closely connected to increases in serious
assaults.11 Overcrowding makes it hard to provide programs designed to keep inmates from∂ re-
offending, and it strains essential prison infrastructure, such as plumbing, through overuse.
Incarceration is set to grow
Samuels, La Vigne, and Taxy, MPP from the Graduate School of Public Policy and a senior fellow in the Justice Policy
Center at the Urban Institute, PhD in criminal justice from Rutgers University and director of the Justice Policy Center at the Urban
Institute, and research associate at the Urban Institute, November 2013
(Julie, Nancy G.m and Samuul A., Stemming the Tide: Strategies to Reduce the Growth and
Cut the Cost of the Federal Prison System, pg 18, https://www.prisonlegalnews.org/news/publications/stemming-tide-report-growthand-cost-fed-prison-system-urban-institute-2013/)
Decreasing the number of offenders committed to prison and reducing their sentence lengths,
particularly for drug offenders, would be the most direct way to slow the projected growth of the
BOP population or even reduce the population. The BOP does not control either of these drivers, but US Attorneys
could modify their priorities and charging practices, for example as recently directed by the Attorney General.58 Similarly,
legislative changes could reduce the length of statutory mandatory minimum sentences or the
minimum percentage of time served for incoming cohorts. As the number of drug offenders and
their lengthy sentences are the primary drivers of prison population growth, many of these
changes are targeted toward drug offenders or those subject to mandatory minimum sentences.
The estimates presented below are generated for each incoming cohort of BOP admissions for the
next 10 years. For estimates of the future overcrowding, we rely on the BOP’s long-term year-over-year
projections of population growth, assuming that no new prisons are purchased, constructed, or
brought online during this time.59 Without any policy changes, we assume that overcrowding will
rise to 55 percent within 10 years.
UQ – AT declines
Overcrowding is high now, despite small recent declines
Carroll 15, (Lauren, Bachelor's degree, Political Science and Government, Duke, “Federal prison population drops for first time
in 3 decades, Eric Holder says” http://www.politifact.com/truth-o-meter/statements/2015/feb/23/eric-holder/federal-prison-populationdrops-first-time-3-decad/)
Finally, we’ll note that, despite the decline, federal prisons remain overcrowded. Medium- and high-
security facilities are operating at 40 percent and 50 percent above capacity, respectively,
according to the Bureau of Prisons.
UQ – AT squo solves
***also useful for beating CPs w/ econ net-benefit
Aff reforms are key- reforms based around cost-benefit analyses like the ones
in the status quo only replicate the conditions of the carceral state and reentrench neoliberalism- history proves
Gottschalk, Political Science Professor, 6/8 [Marie, Specializes in American politics, with a focus on criminal
justice, health policy, race, the development of the welfare state, and business-labor relations at the University of Pennsylvania.
University lecturer for two years in the People’s Republic of China, visiting scholar at the Russell Sage Foundation in New York,
named a Distinguished Lecturer in Japan by the Fulbright Program, served on the American Academy of Arts and Sciences National
Task Force on Mass Incarceration, member of the National Academy of Sciences Committee on the Causes and Consequences of
High Rates of Incarceration. Boston Review. 6/8/2015. 'The Folly Of Neoliberal Prison Reform | Boston Review'. Accessed July 8
2015. http://bostonreview.net/books-ideas/marie-gottschalk-neoliberal-prison-reform-caught./VL
Amid deficit-allergic neoliberal politics, everyone can agree on the appeal of budgetary savings. So now it is not just liberals
going after mass incarceration. A group of brand-name conservatives, including Newt Gingrich, Grover Norquist,
and, most recently, former governor Rick Perry of Texas, has endorsed various budget-cutting initiatives that
would reduce prison populations. Utah Senator Mike Lee, an influential Tea Party Republican, has delivered speeches on
“the challenge of over-criminalization; of over-incarceration; and over-sentencing.” This bipartisanship has fostered a
wave of optimism; at last it seems the country is ready to enact major reforms to reduce the incarceration rate. But it is
unlikely that elite-level alliances stitched together by mounting fiscal pressures will spur communities,
states, and the federal government to make deep and lasting cuts in their prison and jail populations and to
dismantle other pieces of the carceral state, such as felon disenfranchisement and the denial of civil liberties,
employment, and public benefits to many people with criminal convictions. For one thing, the carceral state has proved
tenacious in the past. Four decades ago, states were in dire financial straits, and there was widespread disillusionment across
the political spectrum with indeterminate sentences and the functioning of prison rehabilitation programs. The 1971 Attica
prison uprising prompted an outpouring of public interest in making prisons more humane and
reducing their populations. A number of national advisory commissions called for a moratorium on prison
construction, and the director of the Federal Bureau of Prisons predicted that the Attica uprising would be
“a positive step forward for prison reform” over the long run. The New York State Special Commission on Attica noted the
enormous impact of racism on criminal justice and concluded, “The problem of Attica will never be solved if we focus only upon the
prisons themselves and ignore what the inmates have gone through before they arrive at Attica.” At the time, there were
widespread expectations that the country’s incarcerated population—which was fewer than 200,000 people,
less than 10 percent of what it is today—would shrink. Instead it exploded. The race to incarcerate that began
in the 1970s has persisted for decades amid fluctuations in the crime rate, public opinion, and economic conditions. If there is to be
serious reform, we will have to look beyond the short-term economic needs of the federal and state governments. We can’t rely
on cost-benefit analysis to accomplish what only a deep concern for justice and human rights can.
Indeed, cost-benefit analysis is one of the principal tools of the neoliberal politics on which the
carceral state is founded.
Status quo reforms are a neoliberal ploy to justify the neoliberal reforms that
eventually recreate conditions of crime and the oppression of the poor- their
reforms will fail
Gottschalk, Political Science Professor, 6/8 [Marie, Specializes in American politics, with a focus on criminal
justice, health policy, race, the development of the welfare state, and business-labor relations at the University of Pennsylvania.
University lecturer for two years in the People’s Republic of China, visiting scholar at the Russell Sage Foundation in New York,
named a Distinguished Lecturer in Japan by the Fulbright Program, served on the American Academy of Arts and Sciences National
Task Force on Mass Incarceration, member of the National Academy of Sciences Committee on the Causes and Consequences of
High Rates of Incarceration. Boston Review. 6/8/2015. 'The Folly Of Neoliberal Prison Reform | Boston Review'. Accessed July 8
2015. http://bostonreview.net/books-ideas/marie-gottschalk-neoliberal-prison-reform-caught./VL
In addition to racism, neoliberalism sustains the carceral state. The commitment to privatization is at work in
the expansion of for-profit prisons, immigrant detention facilities, and privately run parole and
probation services. The precariousness bred by a welfare-averse politics maintains a steady flow of inmates. The main
drivers of penal policy reform at the elite level are cost-benefit analyses and concerns about
recidivism, not concerns of justice or human rights. The Great Recession raised bipartisan expectations that states
would close jails and prisons because they could no longer afford to keep so many people locked up. But these expectations have been
met largely with publicity rather than far-reaching reforms. Moreover, staking the penal reform agenda on budget
cuts only reinforces the neoliberal ethos. The Pew Center on the States, the Council of State Governments, and the U.S.
Department of Justice sit at the epicenter of these budget-based efforts. They have joined to promote schemes largely aimed at saving
money by reducing the recidivism rates of ex-offenders and by diverting some low-level offenders from prison. Many of these
programs focus on people reentering society after prison. Others are examples of justice reinvestment, a “data-driven” approach that
aims to reduce incarceration rates and return the savings to communities hit hardest by the carceral state. The three Rs—reentry,
justice reinvestment, and recidivism—have dominated discussions of penal reform in Washington, D.C., and in many state capitals.
Yet even in a cash-strapped state, criminal justice may not be an obvious arena for savings. Although corrections has been
one of the fastest growing items in state budgets, second only to Medicaid for two decades now, it still
comprises a small portion of spending. In the 2010 fiscal year, state expenditures on corrections
totaled $48.5 billion, less than 3 percent of the nearly $2 trillion in total expenditures. States spend
more than twice as much on highways. And vested interests will fight against attempts to dismantle
the carceral state. Prison guards’ unions, state departments of corrections, law enforcement
associations, the private corrections industry, and the financial firms that devise bonds and other mechanisms to
fund prison infrastructure all stand in the way of a deep reduction in the incarcerated population. (By a deep
reduction, I mean lowering today’s incarceration rate of 700 per 100,000 residents to about 175 per 100,000, the level before the
prison boom began in the mid-1970s. If that seems radical, consider that if today’s incarceration rate were cut only in half, the United
States would still be the most punitive Western country by far.) Evaluating penal reforms by vetting them on the
cost-benefit scales to determine whether they reduce crime while saving public money reinforces the tight linkage in
the public mind between punishment and crime. But this relationship is misleading. As a 2014 National Research Council
paper concludes, “Most studies estimate the crime-reducing effect of incarceration to be small and some report that the size of the
effect diminishes with the scale of incarceration.” Going deeper, hitching the movement against mass incarceration to fiscal burden
fortifies the bipartisan coalition in federal and state government that sees eliminating deficits and debt as its top priority. The zeal
to cut deficits, though, is in truth a zeal to cut the welfare state. David Stockman, President Ronald
Reagan’s first budget director, admitted as much when he explained that the White House
strategically wielded deficit hysteria to slash and burn social programs, shrink the government’s role in
welfare and other services, and further the cause of privatization. Norquist is the nation’s foremost anti-tax
crusader, widely known for his desire to shrink the government “down to the size where we can drown it in the bathtub.” But this
assault on the welfare state, Social Security, public-sector jobs, health and social services, public
schools, and investment in high-crime communities helps to produce the crime that the carceral state was
purportedly built to control. Thus there is little reason to believe that today’s budget-driven reform movement will do much to
eliminate sources of crime or the politics that have encouraged mass incarceration and the aggressive expansion of the carceral state.
UQ – AT SAFE Act
3% chance SAFE will pass
GovTrack ’15 [“H.R. 2944 — 114th Congress: Sensenbrenner-Scott Over-Criminalization Task Force Safe, Accountable,
Fair, Effective Justice Reinvestment Act of 2015.” www.GovTrack.us. 2015. July 8, 2015.
<https://www.govtrack.us/congress/bills/114/hr2944>/VL
Prognosis: 7% chance of getting past committee. 3% chance of being enacted. Only 15% of bills
made it past committee and only about 3% were enacted in 2013–2015. [show factors | methodology]
Won’t pass- massive coalition behind tough-on-crime legislation
Dickinson 6/24 [Tim, Rolling Stone, (2015). Why Isn't More Happening to Reduce America's Bloated Prison Population?.
[online] Available at: http://www.rollingstone.com/politics/news/why-isnt-more-happening-to-reduce-americas-bloated-prisonpopulation-20150624 [Accessed 6 Jul. 2015]./VL
But in the U.S. Senate, criminal-justice reform faces an implacable foe: Iowa Republican Chuck Grassley
has
the bill bottled up in the Senate Judiciary Committee he chairs. In a March Senate speech denouncing the
Smarter Sentencing Act, Grassley suggested reformers would have blood on their hands by making it harder to use the threat of
mandatory minimums to flip street-level drug dealers to rat out . . . Al Qaeda: "It would be foolhardy to meet the threat of
narcoterrorism," Grassley said, "by cutting drug sentences." Grassley's intransigence is backed by powerful
forces, including an army of federal prosecutors still committed to the drug war. Incarceration in
America today has also become a big business. One in 10 inmates is housed in a for-profit facility;
Corrections Corporation of America, a leading for-profit jailer, has a market cap of $4 billion, and a
history of collaborating with right-wing policy groups like the American Legislative Exchange Council to
promote tough-on-crime legislation. The employees of prisons also form powerful constituencies:
The prison-guards union in California has long been one of the most feared political operations in
the state. Across the country, distressed rural communities have become as dependent on the local prison for jobs as an earlier
generation might have depended on the local factory or mill. "It's just like any other industry," says Travis, the John Jay president.
Funds from SAFE will go to extra policing- replicates racism
Lind 6/25 [Dara, The House may be ready for major, bipartisan criminal justice reforms. [online] Vox. Available at:
http://www.vox.com/2015/6/25/8846673/safe-justice-act [Accessed 6 Jul. 2015]./VL
Supporters estimate that after a few years to get its programs set up, the Safe Justice Act would
start saving the
$2 billion per decade. Sensenbrenner and Scott
want some of that money to be redirected into spending on local police. There's a policy reason for this:
government serious money on new prison spending — about
Research shows that potential criminals aren't deterred by the thought of an especially long prison sentence, but they are deterred by
the knowledge that they'd definitely get apprehended. So the bill would redirect deterrence efforts from prisons to
policing. The point of supporting local police is to make it easier for them to engage in community policing — which is hard to do
well when police don't have enough people, or when they're under pressure to make money by issuing as many tickets as possible. It's
not a comprehensive policing reform bill; it's more a list of suggestions than anything else. That might not be a bad thing, politically:
In the wake of the Black Lives Matter movement, there's deep partisan disagreement on how the federal government should treat
police. But reforming prisons has remained a bipartisan issue, even as policing has gotten polarized. The Safe Justice Act reflects that.
UQ – AT Hillary
Hillary Clinton will not win the election
(Roarty, Alex. chief political correspondent for National Journal Hotline "Why Hillary Clinton Isn't the Favorite After
All."Www.nationaljournal.com. National Journal, 15 Feb. 2015. Web. <http://www.nationaljournal.com/magazine/predictiveintelligence-20150213>.)
"Viewing her as a prohibitive favorite at this point is misplaced, definitely," says Alan Abramowitz.Abramowitz isn't a Republican
pollster or a professional Clinton-hater. He's a political science professor at Emory University in Atlanta. And he and his ilk—the
wonky academics who research in anonymity while pundits predict races on TV—offer the most compelling case for reconsidering
Clinton as the likely winner. "I would feel comfortable saying that it's a 50-50 race right now," says Drew Linzer, a political scientist
who is an independent analyst in Berkeley, California. "But I don't think anyone would be wise going far past 60-40 in either
direction." Veteran political operatives regard these predictions as nothing more than musings from the Ivory Tower. But political
scientists who specialize in presidential-race forecasts aren't relying on their guts. They've built statistical models that draw on the
history of modern presidential campaigns (since Harry Truman's reelection in 1948) to determine with startling accuracy the outcome
of the next White House contest. The best-known forecasting tool of the bunch—and one that plainly spells out Clinton's looming
trouble—is Abramowitz's "Time for Change" model. He first built it before George H.W. Bush's 1988 election, and he has used it to
predict the winner of the popular vote in the seven White House races since. (The model predicted that Al Gore would win the
presidency in 2000, when he became the first person since Grover Cleveland to earn the majority of the popular vote nationally but
lose the Electoral College.) The model uses just three variables to determine the winner: the incumbent's approval rating, economic
growth in the second quarter of the election year, and the number of terms the candidate's party has held the White House. Official
forecasts aren't made until the summer before the presidential election. But reasonable estimates rooted in current political and
economic conditions demonstrate Clinton's vulnerability. Consider this scenario: President Obama retains equal levels of approval and
disapproval, better than he has had most of his second term; and gross domestic product growth in the second quarter of 2016 holds at
2.4 percent, the same as last year's rate of growth. Under this scenario, the "Time for Change" model projects that Clinton will secure
just 48.7 percent of the popular vote. In other words, she loses. Slight increases in Obama's approval rating and economic growth
aren't enough to change the outcome for Clinton. Every 10-point improvement in the president's approval—if, for example, 55 percent
of voters approved of Obama while 45 percent didn't—earns Clinton only an additional 1 percentage point of the popular vote. It takes
an extra 1 percent year-over-year GDP growth to give Clinton an extra half percentage point of the popular vote. For Clinton to reach
50 percent of the popular vote, under this model's rules, the president would need to see a 5-point increase in his approval rating and
GDP growth would have to hit 3.5 percent. It's certainly possible, but it's fair to call that a best-case scenario for Obama in his final
year as president. So while Democrats see the recent gains in both Obama's approval and economic growth as signs that Clinton enters
the race as the favorite, the academic modeling suggests that assessment is far too sunny. In fact, the recent uptick is the only thing
keeping her from being a prohibitive underdog. The reason Clinton struggles under seemingly decent conditions is obvious. After one
party holds the presidency for two terms, voters want change. In the model, this desire for a new direction manifests itself as a 4-point
reduction in the candidate's take of the popular vote compared with what candidates could expect had their party held the White House
for just one term.
Hillary Clintons plans for reform wont solve
Burdeen 5/4 (Burdeen, Cherise F. Executive Director of the Pretrial Justice Institute, a national organization working to
advance safe, fair, and effective pretrial justice that honors and protects all people. "Hillary Clinton Can’t End Mass Incarceration
Without Reducing Arrests." EBONY. EBONY, 04 May 2015. Web. 10 July 2015. <http://www.ebony.com/news-views/hillaryclinton-cant-end-mass-incarceration-without-reducing-arrests-503#axzz3fWTR19yg>.)
Last week, Hillary Clinton presented a plan to end “the era of mass incarceration” in America. Her plan was strong on rhetoric, but
weak on the changes in policy and practice needed to actually stop over-incarceration. 2016 Presidential hopefuls who want to
address incarceration have to tackle problems at the pretrial stage, or beginning, of the criminal justice process: arrests, unnecessary
pretrial detention and pretrial release decisions based on how much money an arrestee has. Criminal justice reform has an opportunity
to become the next big bipartisan push, and it is long overdue. But if we want to truly end the era of mass incarceration, we have to do
more than require body cameras on police officers across the country, and more than simply letting low-level offenders out of
prison. Criminal justice reform has an opportunity to become the next big bipartisan push, and it is long overdue. But if we want to
truly end the era of mass incarceration, we have to do more than require body cameras on police officers across the country, and more
than simply letting low-level offenders out of prison. Body cameras won’t stop what happened in Ferguson, where 93% of arrests are
of African American residents, most for offenses like loud music, parking tickets, or loitering. These arrests might not get a lot of
scrutiny, but in reality they represent the routine and dismissive way we treat the most minor of offenses, making us the world’s
largest incarcerator. Right now, officers arrest more than twice as many people for nonviolent drug crimes than violent crimes--these
numbers don’t even include arrests for debt, loitering, or other low-level charges that are highly prevalent in communities of color.
Nationwide, law enforcement made more than 11 million arrests in 2013, the last year for which we have data. Those arrests matter.
As we are seeing in Baltimore this month, once arrested there is no telling when a person might get out, even if they are innocent.
Today, and on any given day, 3 in 5 people behind bars in jail have not been convicted. To know why they are there, look at the bond
amounts being set in Baltimore last week, which highlight the problem: a father found with tennis shoes with a price tag still on with
bond set at $100,000 dollars. An 18 year-old accused of vandalism with bond set at $500,000. When you use money to determine who
stays behind bars, people who pose no risk to the community end up stuck simply because they can’t afford bond. The next part of the
process is where things get truly messy. Compared to defendants who are released before trial, defendants held in jail pretrial are four
times more likely to be sentenced to more jail time with sentences three times as long, and are three times as likely to be sent to prison
with sentences twice as long, according to the Arnold Foundation’s latest research. Put simply: just being held pretrial leads to worse
outcomes for individuals and the community. In fact, just two to three days behind bars makes the lowest-risk defendants 40% more
likely to commit a crime in the future than those let free. Once again, Baltimore could show us why: many of the dozens of people
held pretrial after being arrested while protesting, without chance of release have argued they will lose their jobs. A lost job can mean
lost housing, which can mean committing a crime could simply be about survival. Millions of Americans are booked into our jails
every year, many of whom will be trapped in this cycle that has created America’s incarceration crisis. We simply cannot overlook
the first domino in the mass incarceration line. Arresting people, predominantly African Americans and Latinos, is what has gotten us
into this mess, and we cannot hope to change things until we stop doing it so often. If we don’t want people in jail for playing loud
music, smoking a joint, missing a parking ticket, or being in debt, we have to stop arresting them for it. Pretrial decisions like these
have formed a pipeline to mass incarceration, and any serious candidate for the Presidency must commit to reducing arrests and
decreasing the number of people in America’s jails if they want to put a real dent in incarceration numbers. If Hillary Clinton, or other
candidates for President in 2016, want to be bold about ending the era of mass incarceration, they have to start by looking at the front
end, pretrial stage of the cycle.
Don’t trust perception---all ev is against her
Young ’14
(Young, J.T. Communications Director in Office of Management and Budget (2003-2004) and Deputy Assistant for
Tax and Budget Policy at the Department of Treasury (2001-2003) . PhD in Political Science "Why Hillary Won’t Win." The Daily
Caller. The Daily Caller, 09 Nov. 2014. Web. <http://dailycaller.com/2014/12/09/why-hillary-wont-win/>.)
While perception grows that Hillary cannot be beaten, evidence grows that she cannot win. Scrutinizing her record closely, it is clear
Clinton’s perceived strength is more popularity than political appeal. To avoid weaknesses, her 2016 strategy is to avoid a campaign
as much as possible – and make victory seem like a foregone conclusion. The latest evidence against Hillary being 2016’s heir
apparent came from the most recent Quinnipiac poll (of 1,623 registered voters nationwide, MOE +/-2.4 percent, released 11/26) on
the most prominent 2016 contenders. In matchup after matchup, Hillary bested possible Republican nominees. Hillary beat Christie 43
to 42 percent. She beat Rand Paul, Mike Huckabee, and Jeb Bush – each 46 to 41 percent. She beat Rep. Paul Ryan 46 to 42 percent.
And she beat Senator Ted Cruz 48 to 37 percent. She beat them all, with the exception of Mitt Romney, whom she narrowly trailed 45
to 44 percent. Yet the real keys in these hypothetical match-ups were her small margins of victory and that her total was well under 50
percent each time. Such outcomes are amazing for someone with Clinton’s name recognition. Like a celebrity, she is known by face
and first name-only: “Hillary” can only mean one person. She was First Lady for eight years – arguably the most prominent ever. She
won two Senate terms in one of the nation’s largest states. She was 2008’s presidential frontrunner. She was Secretary of State for four
years in the current administration. And she is perpetually in the news – including a recent book and nationwide tour to prepare the
way for 2016. She is more famous, and more often covered, than any living former president – including her husband. In comparison,
with the exception of Romney, her challengers have scarcely more exposure than Hillary did as First Lady of Arkansas, where she
began her national rise. Yet despite her head start, she cannot break 50 percent against far less well-known challengers. That shows
two very important things. First, she is not as accepted by the public, as she is exposed to it. Second, her opponents’ support is largely
a factor of opposition to her. Hillary actually has few real accomplishments, except holding important jobs. Hers is a resume without
results. Hillary did not have them as First Lady – unless you include the spectacular, failed health care plan. She did not have them as
Senator. And she did not have them as Secretary of State – arguably the area in which this administration is weakest. Nor did Hillary
have real accomplishments in her campaigns. She has run three and won two. That is not bad, until you consider the actual
circumstances. The two races she won were in handpicked New York – one of the nation’s bluest states. Obama won his two
presidential races there averaging 63 percent of the vote against national opponents; Hillary won hers averaging 61 percent against
state opponents. Her 2008 loss was to a then-unknown in the Democratic primary – her base. With these results, why is she presumed
so politically powerful, eight years after she lost her last race? And why should we expect her to reassemble Obama’s coalition – the
one that rejected her then? What Hillary has done since leaving the administration hardly beckons voters to her from across the
political spectrum. She has earned big money in a short time. This first private sector experience in decades will hardly change
conservative or moderate minds about her. As for liberals, a Democratic core constituency, this experience is repellant. This raises the
question any prospective candidate faces: Where is your support? For Hillary, her base is the Democrat establishment – and as 2008
proved, not even all of that.
Bush will win in 2016 – 5 warrants
Russel 6/15
(JASON RUSSELL, 6/15/15 5:00 AM, The Washington Examiner, “Five reasons Jeb Bush will be the next president,”
http://www.washingtonexaminer.com/five-reasons-jeb-bush-will-be-the-next-president/article/2566237\\EJH)
Former Florida Gov. Jeb Bush will launch his presidential campaign Monday in Miami. Much will happen to change the shape of the
race between now and November 2016. But given what we know now, I predict that Bush will become the 45th
president of the United States. Here are five reasons why:
1. Bush is seeking to grow the Republican Party.
Rather than trying to expand his support among conservative voters, Bush is trying to make inroads with moderate,
swing voters. For example, when I've heard Bush talk about his education reforms in Florida, he doesn't just give conservative
talking points about expanding families' freedom to choose the school that's best for them. He explains how successful the reforms
have been in making Florida's Hispanic, black and low-income students outscore students in other states.
Bush is a true Big Tent Republican. He generally doesn't attack other Republicans, and when he attacks Democrats, he
avoids the outraged tone that other GOP candidates employ. This will be an attractive
feature to the growing share of voters who are fed up with the politics of perpetual outrage.
generally
Conservative voters likely won't like his moderate approach to immigration or his support for Common Core. But Bush isn't flip-
flopping on those issues; instead, he is working to convince conservatives of his positions while taking his message to moderate
voters.
2. He's already in the lead.
Bush leads the RealClearPolitics polling average (although Scott Walker and Marco Rubio are very close behind).
His drive to attract moderate voters will expand his base of support. Few others are competing for the same voters, leaving Bush
nowhere to go but up.
After a shake-up in the management of his campaign even before it launches, many have suggested that Bush's campaign is faltering.
I'm reminded of July 2007, when John McCain's campaign manager and chief strategist left. The entire campaign was downsized. In
the end, McCain's shake-up was worse than Bush's, and things turned out okay for McCain. Surely Bush can do the same, if not better.
3. Other Republicans are shifting to the right.
At one point in the last few months I thought Walker had the best chance of winning the nomination. Then he showed what kind of
voters he was trying to attract by taking ultra-conservative positions on national policy issues. Very conservative voters were already
impressed by Walker's record of standing up to intense union opposition, and many would have supported him anyway. By shifting to
the right on immigration, foreign policy and social issues, Walker has made himself look more conservative and less attractive to
voters who weren't already inclined to support him.
With other Republicans moving rightward, there's a vacuum in the middle of the electorate —
one that Bush is well-placed to fill.
4. Hillary Clinton is shifting to the left.
Clinton started the campaign with an unprecedented lead against her competitors. With the
Democratic nomination all but sealed, it would only make sense for her to stay in the ideological
center so as not to scare away moderate general election voters. Instead, Clinton has done the
opposite, championing left-wing causes like debt-free college and automatic voter registration.
The New York Times' David Brooks has called Clinton's campaign strategy a "mistake" and bad for the country. Meanwhile, Brooks
wrote, "Jeb Bush is trying to expand his party's reach." With Clinton abandoning independent voters, Bush's reach into the middle will
go uncontested from the left, leaving Bush an opportunity to gain support.
5. No, Jeb doesn't have a "Bush" problem.
George H.W. Bush failed to win re-election in 1992. I'm sure some pundits must have thought the Bush family
name would be tainted forever due to his unpopularity. But Bush's son won the presidency just eight years later,
and was re-elected with more support than in his initial election. Today, George W. Bush's favorable ratings are
above 50 percent, which is more than President Obama and Hillary Clinton can say about theirs.
Hillary's Obama problem is worse than Jeb's Bush problem.
The Democratic candidate, no matter who it is, is going to be tied to Obama's approval rating.
Hillary Clinton will be especially tied to his foreign policy, having served as his secretary of state.
The ongoing situation in Ukraine will cause her a lot of problems, given her "reset button" stunt.
None of this is an endorsement of Bush or his ideological positions — it's a simple prediction based on research and the way campaign
strategies seem to be developing. If Clinton changes her campaign strategy, or Rubio or Walker start to tailor their messages to
moderate voters, Bush will have even more of a challenge.
Nobody knows for sure who will take the oath of office on Jan. 20th, 2017, but I'm getting my
prediction in early: Expect John Ellis Bush to be standing on the inaugural stage.
The republicans will win in 2016 – reject early polling models – data suggests
presidential approval ratings are the only valuable indicator 16 months in
advance
Egan 7/10
(Patrick J. Egan is an Associate Professor of Politics and Public Policy at NYU. He specializes in public opinion, political institutions
and their relationship in American politics, 7/10/2015, The Washington Post, “Only one poll number right now tells us anything
meaningful about the 2016 election,” http://www.washingtonpost.com/blogs/monkey-cage/wp/2015/07/10/only-one-poll-numberright-now-tells-us-anything-meaningful-about-the-2016-election/\\EJH)
Although the 2016 election is nearly 500 days away, the nation — or at least the nation’s political junkies —
remain hungry for news about the presidential campaign. But what news is there? Polls. So far — in 2015 alone!
— no fewer than 57 polls have asked voters to choose between hypothetical nominees Republican Jeb Bush and Democrat Hillary
Rodham Clinton.
So it’s useful to be mindful that “trial heat” polls conducted now have zero ability to predict the winner of
an election that’s 16 months away. Polls don’t even tell us much about primaries and caucuses that are six months away.
Remember this, then, when digesting last week’s widely reported Gallup finding that, after nine months in which a
roughly equal number of Americans identified as members of each party, Democrats again
outnumber Republicans in the electorate. That puts Democrats “in a favorable political position as
the 2016 campaign is getting underway,” wrote Gallup’s Jeffrey M. Jones. The numbers are “flashing a warning for
Republicans,” declared a headline here at The Post.
Yes, it’s true that more Americans are identifying as Democrats, and not just in Gallup’s surveys. When you take HuffPost Pollster’s
current averages from all published polls (as averages are more reliable than any single data point) you find that the share of
Americans identifying as independents has gone down, while the numbers of Democrats — and
to a lesser extent, Republicans — are going up.
But what — if anything — does that mean for an election that’s nearly a year and a half away? The figure
at below left displays the relationship between party identification in the electorate (or “macropartisanship,” as we political scientists
like to call it) in the year before a presidential election year and the Election Day outcome. For each of the 16 presidential
elections extending back to 1948, the Democratic presidential candidate’s share of the popular
vote is plotted against the Democratic Party’s average affiliation advantage in the year before the
election year.
The result? Party identification more than a year in advance of the election predicts nothing about
how the election will ultimately turn out. (To be wonky about it, party identification insignificantly predicts the
opposite of the final election outcome. A similar analysis, which I don’t show here, finds no relationship between change in party
identification the year before an election and the election’s ultimate result.)
Sharp-eyed proponents of the hypothesis that partisanship predicts elections might point to a positive relationship over, say, the past
four elections (as did the Upshot’s always perceptive Nate Cohn when I posted this figure on Twitter last weekend). But to predict
outcomes accurately, we need data from more presidential campaigns. Four elections do not a reliable trend make.
So what’s a political junkie to do? Watch this number: President Obama’s approval rating. As
political scientists Robert Erikson and Christopher Wlezien explain in their masterful volume “The Timeline of Presidential
Elections,” presidential approval ratings reflect many of the factors that affect how Americans vote
— especially their view of the economy. Erikson and Wlezien show that if voters approve of the
current president — even as far out as 200 days before an election — that’s a good indication that
the incumbent party will win.
Right now we’re more than twice that far away from Nov. 8, 2016, but even so the president’s approval rating today is
still a significant predictor of which party will win next year. You can see that in the right-hand graph, which
plots the popular vote for the same 16 presidential elections against the average net approval rating of the incumbent president
recorded from June through September of the year before the election year — that is, right now. In this graph, since we’re predicting
the Democratic share of the vote, signs on approval ratings are reversed if the incumbent is a Republican. George W. Bush’s terrible
approval rating in the summer of 2007 is signed as positive; Dwight Eisenhower’s fantastic rating in the summer of 1955 is signed as
negative.
The relationship between presidential approval and election results 16 months later is statistically
significant (at p = .04 if you’re counting) and as we would expect, slightly stronger in election years when the incumbent is
actually running for reelection (in an analysis not shown here). Summer presidential approval accounts for 23 percent of the variation
in election outcomes in the following year. Removing two influential outliers — the 1964 and 1992 elections — from the analysis
does not change the finding. The results suggest that the incumbent party becomes the bare favorite to
win when its president’s net approval rating is slightly positive in the summer of the year before
an election, at +4. Currently, HuffPost Pollster estimates President Obama’s net rating to be just
the opposite, at -4, making the Republicans narrowly favored to win the 2016 election by a
predicted margin of 51 percent to 49 percent.
Of course many other developments will emerge that affect next year’s outcome. And given that these predictions are based on
very few elections, they have large margins of error. But at this early date, they’re far superior to speculations based on
trial-heat polls or polls about voters’ party identification. In fact, compared to any other polling
data regularly covered by the media right now, Obama’s approval rating is the only number that
history demonstrates tells us something meaningful about which party may win next year’s
presidential election.
Solvency – law key
Mass incarceration is the cardinal scourge of black masses debilitates
resistance movements—we must use every tactic to challenge it including
legal reform
Williams 68 - civil rights leader and author, best known for serving as president of the Monroe, North Carolina chapter of the
NAACP in the 1950s and early 1960s
(Robert, “Reaction Without Positive Change”, The Crusader, 9.4,
http://freedomarchives.org/Documents/Finder/DOC513_scans/Robert_F_Williams/513.RobertFWilliams.Crusader.March.1968.pdf)
America's bigoted court system is the cardinal scourge of
the powerless Black and white masses. The constitutional myth about "trial by one's peers" is a cardinal sacrilege against the
sacredness of truth. When a Black man is a defendant in Americanism's dock of Anglo-Saxon law he is
pretty much in the same position as an humble lamb on an altar of sacrifice. White
America's savage culture erects a pious facade of devotion to the rule of law rather than of man
and hypocritically attempts to project the ritualistic victimization of the Black man to
some remote and spiritual realm of divinity above and beyond the tawdry arena of satanic
man. To proclaim Anglo-Saxon jurisprudence to be a rule of law; and to allow its application to be left to the whim of insensate brigands is tantamount
to casting pearls before swine. The kangaroo court system in racist America is the most archaic of
Next to naked violence and unmitigated terror, racist
reactionary institutionalized injustice.
Some phases of society modernizes and advances. Certain aspects of culture are in
a constant state of transition, but to and behold Anglo-Saxon law doggedly clings to a Magna Charta steeped in the traditions of a Middle Ages mentality.
Why does this so-called rule of law so readily invoke the heritage of ancient vanity in justifying modern injustice predicated on feudalistic logic and
morality? Why is it so inclined to look backwards instead of forward? Why is it a quilted patchwork of sham reform rather than a bold new uniformed
structure created out of sociology's up-to-date discoveries and premises? It is because it is an
instrument of social reaction in the
employ of reactionaries hell-bent on preserving an ante-bellum and vulturous power structure
frenetically trying to maintain its encircled and battered position. Tyrants do not change of themselves. The
pressure of the people stimulated by the enlightenment derived from their social being is the
driving wheel that propels the vehicle of change. The Black and the powerless, who face the wrath of so-called AngloSaxon jurisprudence, must come to realize the futility of leaving their fate to the rule of law as
implemented by puppet judges who pander to the savage emotions of a cold blooded aristocracy. The true power of the state derives
from the people. The weakness of the people in a confrontation with state tyranny evolves from the apathy, confusion, demoralization, disunity and
ignorance of their own power. All
over degenerate and fascist America today the most complimentary
citizens of a civilized society are being railroaded to prison, are being removed from a decadent
and sheepish society that is in dire need of highly moral and resistant fiber. These courageous and
upright citizens constitute the last thin line between regression and progression . They
are the sparse in numbers but firm pillars that so precariously prevent the society from plunging
into the tragic and chaotic depth of despotic fascism. America's jails are teaming with principled
Black Nationalists, freedom fighters, war resisters, peace advocates, resisters of false arrest, those
forced into crime as a means of survival, the penniless and powerless guilty of minor infractions,
but unable to pay the court's tribute money and the state's bribery. America's racist courts have assumed the despotic
posture of institutionalized lynch mobs enjoying the sanctimonious solicitude of the state's ritualistic buffoonery. This inhumane and
oppressive situation can only be rectified by an aroused, united and determined
citizenry . The power of the enraged masses must be arrayed against this Anglo=Saxon
kangarooism. We must strive to create more favorable legal conditions to disrupt the
orderly and uninhibited process of perennial racist kangaroo justice. A life-and-death struggle
must be waged to break this antiquated first line of the reactionary power structure's defense of its
the archaic courts
still arrogantly pride themselves on the fact that they are the true and noble hermits
from the dark ages . In our life-and-death struggle, we must convert everything possible
fast eroding position. Science changes, medicine changes, education changes, customs change, styles change but
into a weapon of defense and survival . We must not be narrowminded and sectarian
in our scope. When possible we must use the ballot , we must use the school, the church, the arts and
even the evil legal system that we know to be stacked against us.
We must fight in the assemblies,
we must fight in the streets. We must make war on all fronts. We
must use the word as well as the bullet. We must not
only master the techniques of our enemy, but we must surpass him in a technique that will serve
our cause of liberation rather than his cause of slavery. A liberation struggle cannot afford
to hamper its possibilities of success by straddling itself with narrow limitations, by
limiting itself to only one method of struggle . While the gun is essential and basic, it must
be supplemented by actions, sometimes less dramatic, less decisive .
The affirmative is a project of infiltration—universalist prescriptions that
isolate ourselves from the institutions that exercise power militates against
revolutionary movements—becoming acquainted with the methods of
American racist Kangaroo justice is specifically key to develop tactics and
strategies for bringing about the end of the world
Williams 69 - civil rights leader and author, best known for serving as president of the Monroe, North Carolina chapter of the NAACP
in the 1950s and early 1960s
Williams 69
(Robert, “The Deprived: Rebellion in the Streets,” The Crusader, 10.2,
http://freedomarchives.org/Documents/Finder/DOC513_scans/Robert_F_Williams/513.Crusader.Vol.10.2.Summer.1969.pdf)
INFILTRATE THE MANS INSTITUTIONS : Black youth should not commit the
catastrophic error of seeing things simply in black and white . That is, of seeing things as all
good or all bad. It is erroneous to think that one can isolate oneself completely from
the institutions of a social and political system that exercises power over the
environment in which he resides. Self-imposed and pre- mature isolation, initiated by the
oppressed against the organs of a tyrannical establishment, militates against revolutionary
move- ments dedicated to radical change . It is a grave error for militant and justminded youth to reject struggle-serving opportunities to join the mans government services,
police forces, armed forces, peace corps and vital organs of the power structure. Militants should
become acquainted with the methods of the oppressor. Meaningful change can be more
thoroughly effectuated by militant pressure from within as well as without. We can obtain
invaluable know-how from the oppressor . Struggle is not all violence . Effective
struggle requires tactics, plans, analysis and a highly sophisti- cated application of
mental aptness . The forces of oppression and tyranny have perfected a highly articulate system
of infiltration for undermining and frustrating the efforts of the oppressed in trying to upset the unjust
status quo. To a great extent, the power structure keeps itself informed as to the revolutionary activity of
freedom fighters. With the threat of extermination looming menacingly before Black
Americans, it is pressingly imperative that our people enter the vital organs of the
establishment . FIGHT KANGAROOISM: Inasmuch as the kangaroo court system constitutes a
powerful defense arm of tyranny, extensive and vigorous educational work must be done among our
people so that when they serve on jury duty they will not become tools of a legal system
dedicated to railroading our people to concentration camps disguised as prisons. The kangaroo
court system is being widely used to rid racist America of black militants, nonconformists and effective ghetto leadership . These so-called courts are not protecting
the human and civil rights of our people ; they are not dis- pensing even-handed
justice, but are long-standing instruments of terror and intimidation. Black Americans must be
inspired to display the same determination in safeguarding the human and civil
rights of our oppressed people as white racists are to legally lynch us. No matter how much rigmarole is dished out
about black capitalism and minority enterprise, the
hard cold fact remains that it is as difficult for a Black
American militant to receive justice in America's tyrannical courts as it is for a camel to pass through the eye
of a needle. Black people must be brought to see their duty as jurors as an opportunity to right
legal wrongs not to perpetrate shameful obeisance to tyranny and racism . Youth
should mount a campaign relative to this social evil that will by far ex- ceed the campaign of voter
registration.
Solvency – three-pronged strategy
The federal prison population is overwhelmingly high—the plan’s threepronged approach uniquely solves—also means the counterplan cannot
James, 14—analyst in Crime Policy (Nathan, 4/15/14, "The Federal Prison Population Buildup: Overview, Policy Changes,
Issues, and Options", Congressional Research Servie, https://www.fas.org/sgp/crs/misc/R42937.pdf)//emchen
Since the early 1980s, there has been a historically unprecedented increase in the federal
prison population. Some of the growth is attributable to changes in federal criminal justice policy
during the previous three decades. An issue before Congress is whether policy makers consider the rate of
growth in the federal prison population sustainable, and if not, what changes could be made to
federal criminal justice policy to reduce the prison population while maintaining public safety. This
report explores the issues related to the growing federal prison population. The number of inmates under the Bureau of Prisons’
(BOP’s) jurisdiction has increased from approximately 25,000 in FY1980 to over 219,000 in FY2013. Since FY1980 , the federal
prison population has increased, on average, by approximately 5,900 inmates each year. Data show that a
growing proportion of inmates are being incarcerated for immigration- and weapons-related offenses, but
the largest portion of newly admitted inmates are being incarcerated for drug offenses . Data also
show that approximately 7 in 10 inmates are sentenced for five years or less. Changes in federal sentencing and
correctional policy since the early 1980s have contributed to the rapid growth in the federal prison population.
These changes include increasing the number of federal offenses subject to mandatory minimum
sentences; changes to the federal criminal code that have made more crimes federal offenses; and eliminating
parole. There are several issues related to the growing federal prison population that might be of interest to policy makers: • The
increasing number of federal inmates, combined with the rising per capita cost of incarceration, has made it
increasingly more expensive to operate and maintain the federal prison system. The per capita cost of incarceration for
all inmates increased from $21,603 in FY2000 to $29,291 in FY2013. During this same period of time, appropriations for the BOP
federal prison system is increasingly overcrowded .
Overall, the federal prison system was 36% over its rated capacity in FY2013, but high- and
mediumsecurity male facilities were operating at 52% and 45%, respectively, over rated capacity . At
increased from $3.668 billion to $6.445 billion. • The
issue is whether overcrowding might lead to more inmate misconduct. The results of research on this topic have been mixed. One
study found that overcrowding does not affect inmate misconduct; but the BOP, based on its own research, concluded that there is a
significant positive relationship between the two. • The inmate-to-staff ratio has increased from 4.1 inmates per staff member in
FY2000 to 4.8 inmates per staff member in FY2013. The inmate to correctional officer ratio was the same in FY2013 as it was in
FY2000 (9.9 inmates for each correctional officer), and the current inmate to correctional officer ratio is down from a high of 10.9
inmates per correctional officer in FY2005. • The growing prison population is taking a toll on the
infrastructure of the federal prison system. The BOP reports that it has a backlog of 159 modernization and repair
projects with an approximate cost of $342 million. Past appropriations left the BOP in a position where it could expand bedspace to
manage overcrowding but not reduce it. However, reductions in funding since FY2010 mean that the The Federal Prison Population
Buildup: Overview, Policy Changes, Issues, and Options Congressional Research Service BOP will lack the funding to
begin new prison construction in the near future. At the same time, it has become more expensive to expand the
BOP’s capacity. Should Congress choose to consider policy options to address the issues resulting from the growth in the federal
prison population, policy makers could choose options such as increasing the capacity of the federal prison system by
building more prisons; investing in rehabilitative programming (e.g., substance abuse treatment or
educational programs) as a way of keeping inmates constructively occupied and potentially reducing recidivism after inmates are
released; or placing more inmates in private prisons. Policy makers might also consider whether they want to revise some of the policy
changes that have been made over the past three decades that have contributed to the steadily increasing number of offenders being
incarcerated. For example, Congress could consider options such as (1)
modifying mandatory minimum
penalties , (2) expanding the use of Residential Reentry Centers, (3) placing more offenders on probation, (4) reinstating parole
for federal inmates, (5) expanding the amount of good time credit an inmate can earn , and (6)
repealing federal criminal statutes for some offenses.
Solvency – decarceration
A decarceration model solves best and uniquely link turns circumvention
McLeod, 12—Associate Professor, Georgetown University Law Center. J.D., Yale Law School, 2006; Ph.D., Stanford
University, 2009 (Allegra M., “Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law,” Georgetown Law Journal,
Lexis)//emchen
D. DECARCERATION MODEL
A decarceration model is committed foremost to reducing reliance on incarceration and to a sociologically
and empirically informed framework that links court participants to local social services and other institutions, shifting
the
management of socially disruptive conduct in part from criminal courts to other sectors. The ultimate
aim of a decarceration model, as applied to specialized criminal courts, is to isolate those crimes for which
conventional criminal law administration may be most fitting, contributing gradually to the de
facto decriminalization of certain categories of conduct and enabling alternative non-carceral
regulatory approaches to a range of social ills where criminalization remains appropriate. The basic premise
underlying a decarceration model in the specialized courts context is that overcriminalization and
overincarceration are in part structural problems, which specialized criminal courts may begin to address. Because a
decarceration model aims to reduce reliance on incarceration while achieving other social
goals , the model endeavors to respond to the forces that led incarceration rates to rise so precipitously in the first instance and that
cause them to remain so high. The explanations for large-scale incarceration are various, but there is general agreement that criminal
law and policy contributed significantly to the growth in incarceration. n181 Expanded sentences for drug convictions perpetuated a
significant portion of the increase in state prisoners beginning in the late 1980s, and, subsequently, much of that growth has been
attributable to increased penalties for violent crimes, predominantly robbery and assaults, and "public order" offenses. n182 As a
result, criminal law and policy changes stand to contribute substantially to decarceration, but one
single policy intervention will be insufficient to bring about any extensive decrease in imprisonment. Instead, the scholarly consensus
suggests that prison commitments must be reduced and prison release increased and return to prison after parole failure decreased.
n183 Obstacles to achieving these ends, which I will touch upon only briefly because they are thoroughly explored elsewhere, include:
the difficulty of legislatively retreating from the "pathological politics" of [*1632] overcriminalization and overincarceration; n184 the
organizational cultures of police and prosecutors' offices that encourage vigorous enforcement of existing criminal laws; n185 fiscal
constraints that limit available funds for social service alternatives to incarceration; reduced judicial authority under determinant
sentencing laws; resistance of interest group lobbies, such as victims' rights groups and prison guards unions; a limited role for less
politicized expert input in criminal law and policy-making; and belief in the efficacy or at least unavoidability of criminalization and
decarceration model may function to circumvent and begin to reshape some
of these barriers. Courts operating predominately on a decarceration model circumvent some of
the legislative impediments to changing substantive criminal law by working cooperatively with
incarceration. n186 A
prosecutors, police, defense counsel, and elected officials at the local level to shift cases out of the conventional criminal courts.
Without requiring legislative repeal of particular criminal statutes, these courts provide a venue for suspending or dropping criminal
charges in drug cases, a range of misdemeanor cases, and, in some instances, even in cases involving more serious felony charges as
well as in a range of matters involving mentally ill offenders and veterans. A decarceration approach seeks to locate
alternative fora for responding to these matters, and then when the courts have obtained a certain
measure of broad-based support, legislators are able to enact statutes that legitimize and
institutionalize the decarceration regime. This method has proven to be more politically viable
than seeking directly to decriminalize particular conduct, and alternative diversionary court
approaches have garnered considerable public support . n187
A decarceration prison model is best—its piecemeal reforms approach makes
it flexible, self-correcting, and efficient
McLeod, 12—Associate Professor, Georgetown University Law Center. J.D., Yale Law School, 2006; Ph.D., Stanford
University, 2009 (Allegra M., “Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law,” Georgetown Law Journal,
Lexis)//emchen
In their day-to-day operations
on a decarceration model, courts act as diversionary clearinghouses for
social service resources, ensuring the assignment of individual defendants to those resources. Careful empirical monitoring
tracks on an ongoing basis court outcomes to ensure that incarceration is actually reduced [*1633] and to
ascertain the effect of various alternative sanctions and services on participants and other relevant
variables. n188 At least in some jurisdictions, courts adopting a decarceration model assume jurisdiction over those charged with, or convicted of,
more serious felony offenses. n189 This is critical to reducing reliance on incarceration and avoiding net widening because many nonviolent
misdemeanor offenses are already dealt with through non-carceral sentences in the conventional courts. n190 To the extent courts adopting a
decarceration approach address accused offenders who might otherwise receive probationary sentences, the diversionary programming orders issued may
make it less, rather than more, likely that defendants will be subject to incarceration in the future by facilitating opportunities for law-abiding livelihoods.
decarceration model focuses on deploying social structures
separate from criminal law administrative components--such as local neighborhood networks, business organizations, and
The theoretical framework that informs the
mental health, public health, job training, and other social services--to reduce criminal offending and to foster socially constructive citizenship behaviors.
The foundational idea is that social institutions outside the criminal law context are critical to the maintenance of social order and to organizing informal
surveillance. Correspondingly, a shift away from current carceral practices will be enabled by bolstering opportunities for social integration and
There is
wide-ranging empirical and theoretical support for this structural [*1634] approach. One interesting
institutional involvement, particularly for those persons with otherwise limited access to such conventional social institutions. n191
early contribution comes from the work of Sheldon and Eleanor Glueck, married co-authors employed at Harvard Law School from the late 1920s to the
1950s, who conducted a seminal study of the lives of 500 Boston juvenile delinquents. n192 The Gluecks found that although most of the cohort ceased
committing crime after turning twenty-five, a small minority persisted in criminal involvement. Decades later Harvard sociologist Robert Sampson and
criminologist John Laub reexamined the Gluecks' data to determine if there were any criteria distinguishable from the early lives and criminal offending
of those men who went on to become persistently criminally involved over the course of their lives. n193 Sampson and Laub could not identify any
factors present during childhood or adolescence that differentiated those young men who would pose a continuing menace and those who would desist
from criminal activity following adolescence. n194 There were, however, "turning points" in the men's lives--obtaining and maintaining employment and
establishing contacts with conventional institutions and groups--that distinguished those who continued to commit crime from those that did not. n195
Further, men who had been incarcerated in prison were substantially more likely to continue to [*1635] offend than men who served only local jail time
or probation. n196 These factors--rather than personality characteristics, early offense characteristics, childhood experiences, or other factors--appeared to
differentiate the perpetual offenders from those that went on to lead relatively law-abiding lives. n197 Additional support for the hypothesis that social
engagement and institutional involvement, or group-level effects, cause reduced criminal offending derives from a significant body of further studies
linking structural context and the prevalence of effective social organizations with decreased interpersonal violence and neighborhood disorder. n198 As
important, this theory accords with known social facts about the world: social institutions--employers, community organizations, families--convey social
expectations and informally surveil those who participate in them. In a neighborhood where these institutions are functioning effectively, people tend to
be discouraged and inhibited from engaging in criminalized pursuits, and they will tend to have access to social supports in the event they find themselves
struggling with addiction or other personal challenges. n199 Nevertheless, it is important to acknowledge that social institutional engagement will not
serve to dissuade all persons from criminal conduct, and some conventional social institutions may even be criminogenic. n200 Indeed, employed persons
operating in firmly established institutional contexts perpetrate fraud, embezzle funds, and harm others. n201 But conventional institutional engagement
provides some significant constraint on particular sorts of criminal offending [*1636] and lacks the criminogenic and other harmful characteristics
associated with prison or jail. On a decarceration model, then, given the severe harms associated with large-scale incarceration and the compelling
evidence that social institutional engagement may address certain commonly criminally prosecuted forms of socially disruptive conduct more effectively
than incarceration, non-carceral sentencing is preferred. The only circumstances under which a carceral sentence would be imposed in a specialized
criminal court adopting a pure decarceration model would be where there is substantial reason to believe incarceration is necessary to protect public
safety or is otherwise necessary in the interests of justice. And to the extent there is doubt as to this determination, on a pure decarceration model that
doubt would be resolved in favor of non-carceral sentencing unless and until incarceration becomes necessary. n202 In such instances--for example, in
cases of serious violent crime where the defendant is adjudged mentally well and that individual's prior record and most recent criminal conduct suggests
a serious ongoing risk to public safety--it is unlikely a defendant would be referred to a specialized diversionary court in the first place. Were that to
occur, however, the case would be referred back to the conventional court. Though these determinations are inevitably complicated and involve
assessment of uncertain risks, serious violent and dangerous defendants who would continue to pose a grave threat--even if subject to an alternative
socially integrative sentencing regime of mental health treatment, job placement, and social service reporting--are a substantially smaller demographic
than that of the current population incarcerated in the United States. n203 A decarceration
model of specialized criminal law
administration operates with reference to this framework, seeking to facilitate greater noncarceral social institutional integration of persons accused of an array of criminal offenses. But
apart from this commitment to attempting to reduce criminal involvement by improving access to
other social institutions, a decarceration model is untethered from any highly specified
jurisprudential or institutional content. Its sole unifying feature is that of closely empirically monitored
[*1637] experimentation with criminal law administrative alternatives so as to reduce reliance on
incarceration consistent with maintenance of public safety and to forge a more sociologically and empirically oriented criminal justice framework.
Courts adopting a pure decarceration approach would reject the court-based therapeutic methods of
certain specialized criminal courts and the commitment to judicial monitoring as a scalable manner of deterring
criminal conduct. A focus on order maintenance is abandoned too on a decarceration model, along with the associated commitment to broken windows
policing. The purpose of a decarceration approach--more conducive to adoption by conventional courts than reformist approaches that entail providing
therapy in a courtroom context or transforming judges into probation officers, though certainly not typical of traditionally conceived courts--is to oversee
the adequate provision of services to the class of defendants referred to those services and appearing before the diversionary courts, predominately by
monitoring the service providers. This is a role somewhat familiar to courts from the structural reform litigation context. n204 Critically, courts
adopting a decarceration model are experimentalist institutions that are open to revision in
light of ongoing empirical feedback --they are unfinished, self-correcting, reformist
organizations. The aspiration of a decarceration model of specialized criminal law administration
is to bring about criminal law reform incrementally, revising policies in response to input from
defendants, judges, prosecutors, public defenders, and empirical monitoring entities. n205 In this
sense, a decarceration model is decidedly unfinished, promising gradual reform rather than a
bold new program fully specified in advance. n206 A further advantage of a decarceration model is that it works
to reduce reliance on incarceration while closely attending to the particular needs and [*1638] risks
associated with specific populations of defendants. The hope is that this will free up resources
currently allocated to criminal law administration and make them available for other sectors better suited to addressing the
relevant underlying problems. This may help to negotiate (if not to entirely avoid) the decarceration trap that Professors Robert Weisberg and Joan
Petersilia have cautioned against: the "grave risk of backfire if advocates attempt to reduce mass incarceration simply for the sake of reduction rather than
coupling advocacy with a full consideration of the causes of recidivism." n207 Because, as Weisberg and Petersilia warn, "even if small increases in
crime by released prisoners . . . are not statistically meaningful, they may reignite the political demagoguery that contributed to mass incarceration in the
first place." n208 A
decarceration model functions in an incrementalist fashion to reduce reliance on
incarceration by experimenting with alternatives closely tailored to the needs of
populations currently subject to criminal supervision while attending to the causes of recidivism and creating a record
of demonstrated positive results.
Solvency – court key
Federal legislations have historically failed—Supreme Court is key to set the
precedent for racial movements and racism
Heitzeg, 15—Professor of Sociology and Critical Studies of Race and Ethnicity at St. Catherine University (Nancy A., "On the
Occasion of the 50th Anniversary of the Civil Rights Act of 1964: Persistent White Supremacy, Relentless Anti-Blackness, and the
Limits of the Law", Hamline Journal of Public Law & Policy, Lexis)//emchen
The re-institutionalization of slavery via the criminal legal system also served to effectively undo the
newly acquired 15th
Amendment right to vote. This was legislatively curtailed by the tailoring of
felony disenfranchisement laws to include crimes that were supposedly more frequently
committed by blacks. In the post-Civil War period, existing felony disenfranchisement laws were expanded dramatically,
especially in the South, and modified to include even minor offenses. This legislation, in combination with literacy tests, poll
taxes, grandfather clauses and ultimately, the threat of white terror, essentially denied Blacks the right to vote until the
mid-twentieth century. The 14th Amendment's promise of due process and equal protection was insufficient to
override this continued economic exploitation and civic exclusion. This was due to a series of
Supreme Court rulings that interpreted the 14th in support of state's rights, white supremacy, and
against Black inclusion. In United States v. Cruikshank (1876), the Supreme Court ruled that that "The
fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but
this adds nothing to the rights of one citizen as against another." 34 This decision, in a case involving the bloody
Colfax Massacre, forbade the Federal Government from relying on the Enforcement Act of 1870 to prosecute actions by white
paramilitary groups that had been violently suppressing the Black vote. 35 This decision paved the way for nearly a
century of unchecked white extra-legal violence and lynching that served to enforce white supremacy in both
law and practice. On matters of racial equality, the most famous Supreme Court ruling of the era was Plessy v. Ferguson (1896). 36
Post slavery, white supremacy in the law was accomplished by the introduction of a series of segregationist Jim Crow laws that
mandated Black exclusion from white spaces, even in public accommodations. In a challenge to legalized segregation of public
transportation in the state [*64] of Louisiana, Plessy argues that these laws have denied him equality before the law. The majority
disagrees and sets forth the principle of "separate but equal." Justice Brown (1896) writes for the majority, It is claimed by the plaintiff
in error that, in an mixed community, the reputation of belonging to the dominant race, in this instance the white race, is 'property,' in
the same sense that a right of action or of inheritance is property. . . We are unable to see how this statute deprives him of, or in any
way affects his right to, such property. If he be a white man, and assigned to a colored coach, he may have his action for damages
against the company for being deprived of his so-called 'property.' Upon the other hand, if he be a colored man, and be so assigned, he
has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man. 37 The sole dissenter in
Plessy sets up the juxtaposition between Jim Crow and color-blindness that frames the contemporary
debate on race today. Justice Harlan, while acknowledging the reality of white supremacy, decries its
support with the law, but with cold comfort: The white race deems itself to be the dominant race in this country. And so it is, in
prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to
its great heritage, and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is
in this country no superior, dominant, ruling class of citizens. There is no caste here.
Our constitution is color-
blind , and neither knows nor tolerates classes [*65] among citizens. In respect of civil rights, all citizens are equal
before the law. 38 Even post-Emancipation, Blacks had no claim to the property rights of whiteness, nor full and equal access to rights
supremacy and anti-Blackness persisted in law , even in the face of
Amendments to the Constitution, which purported to undo the same.
of citizenship that entailed. White
Previous Supreme Court rulings were insufficient to establish a precedent—
the plan is key to create a model for local and state levels
Salins and Simpson, 13—Loyola University Chicago School of Law (Lauren Salins and Shepard Simpson, "Efforts to
Fix a Broken System: Brown v. Plata and the Prison Overcrowding Epidemic", Loyola University Chicago Law Journal,
Lexis)//emchen
B. Judicial Response to Prison Overcrowding Traditionally, courts treated conditions of confinement cases in
a
hands-off manner due in large part to avoid interfering with the legislative administration of corrections. 48 Beginning in
the late 1960s, however, courts transitioned to a more hands-on approach with respect to
inmates' rights as the need for prison reform began to outweigh separation of powers concerns . 49
In a string of cases decided during this transitional period, the U.S. Supreme Court addressed the unconstitutionality
of prison conditions and inmate treatment. 50 Through these initial cases, which included challenges against
deprivation of good time credits 51 and punitive [*1163] confinement conditions, 52 the Court indicated its willingness to
address issues related to prison administration and prisoners' rights. 53 The Court's assertion that "there is no Iron
Curtain between the Constitution and the prisons of this country" indicated its newfound approach: the Court would not recuse itself
from cases considering prisoners' claims solely on the basis of state legislatures' traditionally discretionary role in corrections
administration. 54 Shortly thereafter, the Court heard a number of cases in which prisoners alleged Eighth Amendment violations.
55 Although the Court recognized that offenders face limitations on their personal liberties as a primary consequence of criminal
behavior, 56 the Eighth Amendment guarantees inmates a basic level of rights and protections from cruel and unusual punishment. 57
Consequently, the Constitution requires prison systems and officials to provide inmates with
necessities, such as [*1164] clothing, food, shelter, and medical care. 58 While corrections officials must uphold prisoners'
constitutional rights, courts have issued conflicting decisions regarding what degree of rights deprivation constituted an Eighth Amendment violation within the prison context. 59 In addressing
alleged Eighth Amendment violations, the Supreme Court established two non-definitive tests to evaluate the validity of a prisoner's
claim. 60 Objectively, as established in Rhodes v. Chapman, 61 the challenged conditions must be sufficiently serious such
that they deprive
inmates of basic life necessities in order to constitute cruel and unusual treatment. Subjectively,
officials must have had knowledge
of, and disregarded, the excessive risk to the prisoners' health and safety posed by the unconstitutional conditions.
Despite establishing these objective and subjective standards, the Court did not provide lower
courts with a cohesive framework to analyze these standards in cases involving prisoners' Eighth
as put forth by the Court in Estelle v. Gamble 62 and Wilson v. Seiter, 63 prison
Amendment rights, especially with respect to the objective test established in Rhodes. 64 On the one hand, some courts follow a
totality of circumstances approach and analyze whether conditions as a whole are in accord with constitutional guarantees. 65 Under
this approach, [*1165] courts look not only at basic necessities, such as adequate food and safety, but also at the day-to-day life of the
prisoners, including recreational and rehabilitative opportunities. 66 On the other hand, some courts use a core-conditions approach
and look solely at whether a prison adequately provides basic inmate necessities, including safety, shelter, sanitation, and healthcare.
67 Under both approaches, however, courts have consistently held that overcrowded prisons combined with unsanitary and unsafe
conditions violate inmates' Eighth Amendment rights. 68
The Supreme Court uniquely spills over to state and local levels—especially
in the context of racial equality—the plan is key to reverse racially coded
legislation
Heitzeg, 15—Professor of Sociology and Critical Studies of Race and Ethnicity at St. Catherine University (Nancy A., "On the
Occasion of the 50th Anniversary of the Civil Rights Act of 1964: Persistent White Supremacy, Relentless Anti-Blackness, and the
Limits of the Law", Hamline Journal of Public Law & Policy, Lexis)//emchen
B. THE POST-CIVIL RIGHTS ERA, MASS INCARCERATION AND "COLOR-BLINDNESS The Supreme Court ruling
in Brown v. the Board of Education of Topeka, Kansas (1954) is often used as the benchmark for
chronicling the start of the Civil Rights Movement of the 1950s and 1960s. 39 The Court's unanimous
rejection of Plessy's "separate but equal" provided a new Federal framework with which to
challenge Jim Crow segregation on the state and local levels . It offered the back drop for the Montgomery
bus boycott, the resistance in Birmingham, Bloody Sunday, the voter registration drives of Freedom Summer, and ultimately, passage
of the Civil Rights Act of 1964, The Voting Right Act of 1965, the Fair Housing Act of 1968, and the 24th Amendment to the
there was hope again that the law itself could be pressed into the service of
racial equality , those victories now seem bittersweet. Bell argues that the Brown decision and the ensuing
Federal legislation were "silent covenants" of interest-convergence, where "perceived self-interest
of whites rather than the racial injustices suffered by Blacks have been the major
motivation in racial-remediation policies." 41 Judge Robert L. Carter, one of the attorneys who argued Brown goes
further, ". . .the fundamental vice was not legally enforced racial segregation itself; this was a mere
[*66] by-product , a symptom of the greater and more pernicious disease - white supremacy ." 42
Legally supported segregation was uprooted without dislodging either white supremacy or antiBlackness, now cloaked in race-neutral rhetoric of "color-blindness". The "color-blind" Constitution and the raceneutral requirement of Federal Civil Rights legislation now serves as convenient cover for the persistence of
institutionalized racism.
Constitution. 40 While
Solvency – prison presumption
Reversing the Prison presumption paradigm can slash mass incarceration
rates
Hamilton ’14 [2014, Melissa Hamilton is a Visiting Criminal Law Scholar, University of Houston Law Center; J.D., The
University of Texas School of Law; Ph.D., The University of Texas at Austin, “ARTICLE: PRISON-BY-DEFAULT:
CHALLENGING THE FEDERAL SENTENCING POLICY'S PRESUMPTION OF INCARCERATION” 51 Hous. L. Rev. 1271]
Congress could certainly act by passing legislation to reverse the Commission's policies favoring prison in all cases. Arguably, though,
it does not need to, considering that it already had approved the widespread use, perhaps even a preference for, alternatives to prison,
as discussed previously. n272 In addition, the fact that the Department of Justice is evidently a proponent of substantially reducing the
federal incarceration rate means that the other two criminal justice institutions - being the Commission and the federal
judiciary - are the players that now must confront dramatically changed circumstances and alter
their perspectives and practices. The Commission is the more obvious of the two with which to begin, considering the
argument herein that the downward rate of alternative sentences is due largely to Commission-directed policies. n273 Importantly, the
Department of Justice, in its recent call for further reforms, specifically appealed to the Sentencing Commission to effect changes in
the Guidelines with the goal of controlling the prison population. n274 The executive agency has specifically invited the Commission
to learn from the states' successes and failures to "address the significant challenges facing the federal criminal justice system today."
n275 A federal district judge is concerned: "It might seem odd that the Commission was more concerned about judges imposing
[*1324] insufficiently harsh sentences than it was about mass incarceration." n276 Recommendations for Guidelines
policy changes to reverse this perspective are obvious. These include substantially reducing
sentencing ranges, perhaps across the board, and providing more research-based departures for
offenders who pose less risk than the current Guidelines appreciate. n277 And to comport with the
theme of this Article, suggestions would be to prioritize complying with prior congressional
mandates concerning alternative sentences. The Commission should jettison its prison-by-default
ideology and start anew with the philosophy that giving direction on the full range of types of
sentences is at least as important as guidance on the length of imprisonment. Writing full
guidelines on the continuum of nonprison sentences can take the Guidelines to a much higher
level, improve the relevance of the Commission, and provide needed direction to district judges.
The Commission has both the general expertise to do so and the current information on various
alternatives and their relative successes at the state level, according to a symposium on
alternatives the agency hosted in 2008. n278 In addition, the prison and fiscal crises call for a wellconstructed and research-based in/out guideline. Professor Wayne Logan has recognized that the in/out
determination is far more nuanced than a decision on the length of a prison sentence, but one that
can be appropriately guided by thoughtful criteria. n279 Thus, outlining factors a judge should
consider in deciding whether prison is necessary would be helpful. n280 Finally, the single prison
grid is generally of no use to [*1325] alternative sentences, meaning that producing separate
tables for them is an appropriate task. In the end, it appears to be preferable to adopt the states'
sentencing philosophy in that the in/out decision ought to favor nonprison sentences. Prison
should be considered a scarce resource, such that it is reserved for when there is a reason in the
individual case that strongly indicates that a prison sentence is necessary to achieve the goals of
sentencing other than rehabilitation. The fact that drug offenders represent about half of sentenced
prisoners in recent years n281 bolsters this proposition considering the nation's experience in
which rehabilitative programming generally provides better opportunities for successful outcomes
than lengthy prison terms. n282 Despite these basic suggestions being consistent with the mission given the Commission,
determining whether the agency will actually do so is merely guesswork at this point. On the positive side, the Commission
has in the past studied alternative sentences, showing its willingness and ability to do so. At an early
stage, a working group was established specifically for that purpose. Chaired by Norman Carlson, who had been the director of the
Federal Bureau of Prisons from 1970 through 1987, the Alternatives to Imprisonment Project produced a lengthy paper that detailed "a
package of highly structured sentencing options emphasizing accountability, control, responsibility, counseling, education and other
treatment or risk reducing programs" which addressed all four sentencing philosophies, including rehabilitation. n283 While the
working group still suggested that some term of imprisonment be imposed in almost all cases, it set forth a continuum of community
sanctions that could be used in lieu of a portion of a prison term. n284 The report stated that alternatives could save tax dollars,
provide efficiency in using prison space, and increase fairness. n285 The report even suggested specific exchange rates between the
type of alternative and prison time (such as one day of intensive probation supervision being equivalent to [*1326] three days of
prison). n286 Unfortunately, these recommendations have been generally neglected by the agency as a whole. n287 Later, as
evidenced in a 1996 report, Commission staff recognized that alternatives were rarely imposed despite the fact there was no evidence
that alternative programming was not readily available. n288 In that same report, staffers suggested the Commission
draft an in/out guideline and prepare grids for alternative sentences. n289 These goals have yet to be
achieved. Over a decade thereafter, the Commission tried again. In 2008 the Commission held a two-day national symposium on
alternatives to incarceration, gathering together a host of state and federal experts and practitioners, with the intent to "gather
information regarding the use of alternatives to incarceration and to provide a forum for idea-sharing concerning implementation of
nonincarceration sanctions in the federal system." n290 On a positive front, the Commission in a report post-symposium seemed to
embrace the practical advantages of alternatives: Effective alternative sanctions are important options for federal, state, and local
criminal justice systems. For the appropriate offenders, alternatives to incarceration can provide a substitute for costly incarceration.
Ideally, alternatives also provide those offenders opportunities by diverting them from prison (or reducing time spent in prison) and
into programs providing the life skills and treatment necessary to become law-abiding and productive members of society. n291
Nonetheless, the symposium produced little change. Perhaps this was due, in part, to the Department of Justice's representative at the
symposium rejecting any need to change the Guidelines with respect to alternative sentencing. n292 Obviously, this statement
preceded the recent change of heart by the agency's top brass. n293 In any event, the Commission took two [*1327] subsequent
actions. First, the Commission issued a report in 2009 on alternative sentences. This report concedes that Congress considered
probation to be an actual sentencing option and that community confinement options can be cost effective. n294 The second
consequence of the 2008 symposium on alternatives was a Guidelines amendment. The Commission passed the amendment, effective
in late 2010, that it described as "expanding the availability of alternatives to incarceration"; yet the most significant change it
accomplished was to move Zones B and C one cell higher on the criminal history score axis. n295 These changes affect only a small
proportion of offenders. n296 Other than the minor changes made in the amendment, the Commission
failed to take the opportunity to provide more guidance on the in/out decision, on what types of
alternatives to consider, or the duration thereof. Curiously, after the amendment became effective in 2010, the
Commission has appeared, at least from a public perspective, to let it slip from its attention. Recent publications from the Commission
do not mention the issue and educational conferences and materials fail to highlight and promote any new information on alternatives.
n297 Considering sentencing statistics since then, the symposium definitely has not realized an increase in the rate of nonprison
sentences, as shown in Figure 1 and by the Commission's recent data showing the use of probation has decreased another percent, to
9%, through the fourth quarter of fiscal 2013. n298 And considering the pro-prison positions maintained in the Guidelines, the fact
that the Commission recently has explicitly invited Congress to make statutory changes rendering it more difficult for district judges
to impose sentences that are contrary to the Guidelines and for appellate courts to scrutinize more carefully non-Guidelines sentences
(largely to limit Booker discretion) only cements those positions. n299 [*1328] On a more positive front, the Commission has signaled
that it might finally appreciate that Congress may have lost its appetite for absorbing increasing prison costs and building more prisons
to accommodate a growing prison population. In mid-2013, the Commission actually acknowledges, in its list of priorities, the
congressional edict that it consider the fact that prisons are operating over capacity. n300 Then again, other than such a vague
reference, it provides no hint on what direction it may take. It is certainly not impossible, for example, to provide judges with guidance
on the in/out decision as state commissions have accomplished such a task and their products could serve as guides. n301 Nonetheless,
whether or not the Commission in the future offers any guidance as just suggested, there is still an important role that the judiciary
can play in embracing alternative sentencing. C. Judicial Discretion as Policy Driver Significantly, federal judges are no longer as
beholden to the Sentencing Commission's Guidelines or policies after Booker. n302 Thus, even if the Commission remains entrenched
in its pro-prison favoritism, judges may lawfully, individually as well as collectively, embrace the Booker-inspired power to reengage
with alternative sentencing practices and with rehabilitation as a primary sentencing philosophy. n303 As criminal law expert Franklin
Zimring has observed, judges can make a difference in substantially reducing punishments even when the formal rules do not change:
There is enough free play in the choices available to prosecutors and judges that the formal conditions of a sentencing regime can
remain untouched while the punishments delivered by the system can double or drop by half! Much of that latitude is contained in the
wide discretion to either send felons to prison or put them on probation - what sentencing analysts call "the in-out decision." n304
[*1329] Sentencing expert Nora Demleitner earlier predicted a trend toward an increasing rate of probation sentences, speculating
after Booker rendered the Guidelines advisory that as judges may be able to use their increased discretion in a post-Booker world, the
use of nonprison sentences could increase. The danger of unguided discretion in this area coupled with the budget cutbacks in the
federal prison system should provide an incentive for the judiciary and Congress to explore greater use of nonprison sentencing
options. n305 Unfortunately, this prophecy has not come to pass. At the time of her prediction, 17% of federal sentences did not
include prison terms, yet the rate has only continued to drop, down to 9% through the fourth quarter of fiscal 2013. n306 Still, there is
hope for change in the judicial mindset today. Supreme Court Justice Anthony Kennedy delivered a speech at an annual American Bar
Association meeting in which he called on the organization to start a rational public discourse on the subject of injustices wrought by
the current state of America's prison and correctional systems. n307 He declared that it was no excuse even if the current prison
system was a product of neglect rather than intent. n308 In response, the organization established the ABA Justice Kennedy
Commission to study correctional problems and to make recommendations. n309 The group concluded that "the need for incarceration
of nonviolent offenders may have been exaggerated in the past." n310 The ABA Justice Kennedy Commission
reported that "many prosecutors, judges, defense counsel and legislators who have differing
attitudes toward crime and punishment share a feeling that more incarceration and longer
sentences are not always in the public interest" and that it is generally preferable to be smarter on
crime rather than just tougher. n311Perhaps the most significant endorsement was that incarceration be reserved for offenders
who pose the greatest danger to the community and who commit the [*1330] most serious offenses and that "alternatives to
incarceration should be provided when offenders pose minimal risk to the community and appear likely to benefit from rehabilitation
efforts." n312 Consistent with the initiative, the American Bar Association now has adopted a sentencing standard advocating that a
prison sentence should be mandated by law for a particular offense only in the narrow circumstances where "the legislature can
contemplate no mitigating circumstance that would justify a less restrictive sanction." n313 Others envision that the evolution of the
makeup of the federal judiciary may bring about positive change in adopting a broader alternative sentencing mindset: The recent
addition of new federal judges with prior successful experiences with the use of rehabilitation-focused sanctions at the state level may
be at least a partial explanation for the increased proportion of federal sentences that are below the recommended federal sentencing
guideline range. This suggested that many federal judges may be amenable to the expanded utilization of alternative sanctions,
particularly if there is mounting evidence that the imposition of these sanctions does not pose a public safety threat, but does provide
an opportunity for not only short-term offender control, but also long-term offender change. n314 A survey of federal judges in 2010
showed that a small minority of respondents agreed that the Guidelines should at least permit a nonprison sentence for a variety of
offenses. n315 At least 10% of survey-takers believed that nonincarcerative punishments may be appropriate for charges relating to
firearms, illegal reentry, and assault, while at least 20% approved for offenses involving fraud, larceny, and non-distribution child
pornography. n316 At least one out of ten judges approved of the potential for nonprison sentences for distributing each of the major
types of drugs, ranging from 11% for heroin to 22% for marijuana. n317 Even Federal District Judge William K. Sessions III, former
Chair of the Sentencing [*1331] Commission, recently suggested a substantially revised sentencing grid that would increase
opportunities for judges to use alternatives to prison. n318 Sentencing data also provide some glimpses that there is at least a subset of
judges willing to use their Booker power to reject the Commission's guidance on the use of prison as compared to alternatives. n319
Figure 13 utilizes fiscal 2012 data made available by the Commission. It represents the number of nonprison sentences issued relative
to the grid zone in which the defendants fell. Recall that the Commission's strict policy precludes a nonprison sentence in Zones C and
D, but as the table illustrates, many district judges are issuing nonincarcerative sentences in at least a small percentage of cases in
those two zones. n320 Figure 13: Sentence Type by Zone, Fiscal 2012 n321 Figure 13: Sentence Type by Zone, Fiscal 2012 The rate
of offenders in each of the Zones in fiscal 2012 receiving a nonprison sentence for Zones A, B, C, and D, ratchet downward in the
expected fashion, at 37%, 21%, 15%, and 3%, respectively. While the presence of nonprison [*1332] sentences in Zones C and D
occur for a variety of reasons in individual cases that may comply with Guidelines rules (such as government-sponsored departures the
Guidelines formally permit), the percentages represent as well the fact and frequency of judges in individual cases assuming their
Booker-provided authority to disregard the Guidelines policy precluding probation. Conducting another data run using the same fiscal
2012 datafile, results showed that 55% and 41% of the probation/alternative sentences in Zones C and D, respectively, exemplified
discretionary judicial departures. Nonetheless, despite positive clues for substantial change on actual in/out decision practices, and
despite the legal flexibility provided by Booker and Kimbrough to reject the Commission's policy of prison by default, the rate of
nonprison sentences continues to fall.n322 In a country in which probation is the most common sentence overall and in which multiple
states are actively pursuing alternative methods to control their prison populations, it is a curiosity as to why the federal judiciary
remains the exception. Perhaps it is merely a matter of the gravitational pull of cultural norms. A commentator observes that the
"culture of punishment solely through imprisonment has permeated the system for so long that lawmakers, judges, district attorneys,
and probation officers think that justice can only be satisfied through a sentence of incarceration." n323 To be sure, a sentencing
outcome does not epitomize an isolated decision made solely by the sentencing judge. Instead, sentencing often is a sort of negotiated
product from a courtroom community in which normative practices may be at play. The members of the courtroom community, who
often rely on each other to better attain efficient case processing, may have come to agreement on the "normal penalties" and "going
rates" for certain types of crimes in their courtroom or district. n324 Normative practices, though, can certainly change and evolve.
Our system of law, based as it is on the common law, enjoys a long history of judicial activism and cultural shifts due to internal and
external changes in circumstances. n325 [*1333] Several district judges are acting as leaders in conveying the message through
published opinions, often sternly worded, that the Sentencing Guidelines offer too punitive of sentences and, as a result, judges can
and should exercise their legal authority to reject them and their underlying policies as and when necessary. Judges Jack B. Weinstein
(E.D.N.Y.), n326 Mark W. Bennett (N.D. Iowa), n327 and Lynn Adelman (E.D. Wis.), n328 among others, are penning thoughtful
opinions providing support for viewing the Guidelines and Commission policies with a critical eye and espousing the judiciary's
professional expertise in meting out reasonable punishments. As a former federal judge and sentencing scholar recently suggested,
the Commission itself should more aggressively track and highlight district-level decisions for the
educational benefit of others in the judiciary. n329 It is true that the use of judicial discretion may
not have the ability to foster substantial percentage changes in the in/out decision because of the
application of mandatory minimum statutes n330 and the general unavailability of alternative
sanctions for the growing immigration offense population. n331 But, as the Commission itself has
noted, there are loopholes through which judges, perhaps with prosecutors complicit, can
counteract at least mandatory minimum prison floors. n332 The inability to impact the likelihood
of imprisonment for noncitizens also is not dispositive considering the recent upward trend in
immigration prosecutions is more a matter of immigration politics [*1334] independent of
criminal justice policy. Further, deportation is an executive decision rather than a judicial one.
n333 Overall, there exists much evidence that a cultural shift amongst the federal judiciary
toward embracing alternative sentencing may now be on the horizon. IV. Conclusions The federal
sentencing system is facing a host of newly offered criticism for its role in contributing to the
country's shameful recent experience with mass incarceration. The federal prison system keeps
reaching records for the number of prisoners it houses and the rate at which it incarcerates its own
residents. A main contributor to those statistical measures is the plummeting rate at which federal
defendants are sentenced to nonprison sentences. In turn, as this Article posits, a major source of
that statistic is the U.S. Sentencing Commission, which earlier on adopted, and has continued to
maintain, various prison-by-default policies in its Sentencing Guidelines. The federal judiciary,
though used to issuing nonprison sentences in about half the cases before the Sentencing
ReformAct of 1984, has seemed to unfortunately follow the Commission's guidance with respect
thereto, considering that since then sentences include prison in a substantial majority of cases .
Circumstances have changed, though, for political, financial, philosophical, and pragmatic reasons, and presumptive prison sentencing
practices are being questioned by important figures interested in criminal justice and fiscal issues. An unlikely confederation of
ideologically diverse individuals and groups are on board, as is the Department of Justice. This Article makes the case that
a timely change in federal sentencing policy is appropriate that would reverse the presumption
that a prison term is virtually always necessary. Both the Sentencing Commission and the federal
judiciary should replace these policies and practices with a normative culture that envisions a
prison sentence as only appropriate when certain facts and circumstances unique to the individual
case indicate that a prison term is the least restrictive alternative. Such a policy would have
various benefits, such as reducing incarceration rates, alleviating prison overcrowding, fostering
rehabilitative potential, providing just sentencing, protecting the individual and the community
better, and, more broadly, aligning the federal system with state and global norms of sentencing
Replacing Punitive Presumption and ending the failed war on drugs with
scientifically backed community rehabilitation procedures is the only way to
cure the plague of mass incarceratin- the world is watching
Drucker ’13 [2013, Ernest Drucker is Professor Emeritus in the Department of Family and Social Medicine, Montefiore
Medical Center/Albert Einstein College of Medicine; Adjunct Professor of Epidemiolog, Columbia University Mailman School of
Public Health, “Article: Drug Law, Mass Incarceration, and Public Health” Oregon Law Review 91 Or. L. Rev. 1097]
Conclusion Our failed drug policies have for decades undermined our ability to deal effectively with
both our drug problems and related public health problems - e.g., the AIDS epidemic, which continues to spread
at a [*1125] very high rate in the United States. n157 Today, even as we see some signs of decline in state prison populations, we
continue to create new mechanisms to justify our massive system of punishment (e.g.,
immigration, expanded definitions of sex crimes, and poverty itself) and use these to sustain very
high levels of imprisonment - as well as expansions of web-based criminal registries. At the same time, drug use
persists as a powerful force sustaining the "prison industrial complex." n158 Even New York State (with its
big drop in prison populations) still arrested 50,000 people in 2011 for marijuana offenses (in New York City) and continues racial
profiling for massive Stop and Frisk programs in minority communities. n159 And many other states' criminal justice systems
continue to ignore proven approaches to effective treatment for addiction to hard drugs. For example, a jail in New Mexico recently
announced that it will stop offering medical treatment for the many heroin addicts locked inside it. n160 According to the warden,
""My concern is that the courts and other authorities think that jail has become a treatment program, that it has become the community
provider," he said. "But jail is not the answer.'" n161 As we recognize the epidemic qualities of mass
incarceration, more scholars and public health officials are viewing our bloated system of
punishment itself as the problem - shifting the paradigm and asking the right question: "How can
we effectively rein in the wide misuse of imprisonment?" The public health model and its tools of
epidemiological analysis (that have been used so successfully for the prevention of other public
health threats) now has remarkable potential for helping to mitigate the damages and eventually
to end the epidemic of mass incarceration in America. We can reduce the scale of the epidemic of
mass incarceration by addressing and eliminating some of its root causes, including the use of
long mandatory prison sentences for nonviolent drug offenses, and by continuing to reform overly
punitive drug laws - as New York and [*1126] some other states are now doing. In addition, we must
begin to remove the long list of restrictive rules and disenfranchisements (from work, education,
housing, and voting) that serve to socially and economically incapacitate convicted felons and
undermine their chances for successful reentry to community life after prison. Next, we can reduce
the harms and the collateral consequences of imprisonment itself on individuals and their families
- by reinstituting rehabilitative models for prison programs providing adequate drug and mental
health services and access to education. By intervening in these vectors of harm from
incarceration for family and community ties - the basis of any social capital that prisoners may
still have - we can begin to limit this epidemic's spread across generations. Finally, as is already
happening, we can begin to replace our crime and punishment model with one based on public health
- using restorative justice and community reconciliation programs - which are especially effective for
youthful offenders involved in drug use and drug sales in order to identify and reach out earlier to those at highest risk, immunizing
means we must end the War on Drugs . Despite
widespread recognition of its failure, the War on Drugs continues as one of the main drivers of
America's epidemic of mass incarceration and the global patterns of corruption and violence
associated with illicit drug markets that feed U.S. drug use. This legacy of violence and the
decades of harsh punishment we have seen worsen many of the public health and social problems
once attributed to drugs themselves. Further, this is a critical moment for global drug policies with the early signs of drug law reform seen in medical marijuana's growing support and moves
toward full legalization of marijuana in some states. The United States federal government should
stop opposing these reforms and join the growing international movement to alter global drug
policies. We are now seeing serious proposals to replace the drug war with harm reduction
methods aimed at stopping the spread of AIDS and other causes of preventable death and diseases
associated with illicit drug use - with clean needles and effective treatment and with medications
like methadone and overdose prevention now based on solid public health evidence. n162 Many world
them against future arrest and imprisonment. This
leaders and heads of state now support the harm reduction model and call on America to change our core assumptions [*1127] about
the role of drug policy. n163The experience of Mexico is most telling: as a major supplier of the forty to sixty billion dollar U.S. drug
market, Mexico saw over 60,000 murders in the last six years n164 and has captured world attention as stark evidence of the
disastrous consequences of drug war polices. New global initiatives for better drug policies are now being developed and proposed by
national leaders and international public health organizations - focusing on reducing violence and forgoing punishment for prevention
and treatment. n165 Ending the plague of prisons can be accomplished without compromising public safety. We
can and must
replace our system of punishment (first for the ninety percent of drug crimes that are nonviolent) with a public
health and therapeutic model for individuals and a restorative justice program at the community
level to heal rather than worsen the effects of social and personal conflicts that so often revolve
around the illicit trade in drugs. In addition we must stop ignoring the real and potent health
threats of the many legal drugs - including licit pharmaceuticals (prescription opioids and tranquilizers now
cause more overdose deaths than heroin and cocaine n166). Finally, the massive markets for "legal" drugs such as alcohol and
tobacco must be better controlled, as they now account for even more deaths and greater disease than all other drugs combined. n167
It is time we had a uniform and effective system for regulating all types of drugs based [*1128] on scientific evidence and held
accountable for health outcomes. This requires giving up the moralistic and punitive drug war model that
has been such a failure - replacing its quixotic notion of a drug-free world with pragmatic steps
toward bringing our growing drug problems under better control and putting an end to the
damaging response to drugs that their criminalization and mass incarceration has shown itself to
be.
Prison Presumption is rooted in a prototyping of white supremacy- the need
to create the spectacle of death and the anti-human to preserve society
Rodriguez ’06 [2006, ,Dylan Rodríguez is Professor and Chair of the Department of Ethnic Studies at UC Riverside. He
received his Ph.D. and M.A. degrees in Ethnic Studies from the University of California, Berkeley (2001), and earned two B.A.
degrees and a Concentration degree from Cornell University (1995). “Forced Passages Imprisoned Radical Intellectuals and the U.S.
Prison Regime” ]
The state’s neutralization and liquidation of the black radical, insurrectionist, and liberationist —
who emblematizes the imminent apocalypse of white civil society in its 1970s moment of crisis—prototypes
the technology
of civil society’s coherence more generally, especially as it has become the site of a proliferated
domestic warfare that no longer exclusively (or even primarily) targets black/Third World activists and
revolutionaries. These convergent narratives of terror, survival, and bodily disintegration speak to
the onset of the normative spectacle of a regimented racialized-gendered state violence that is the
common language of American white civil society’s order, the organic requirement of its
everyday social intercourse: “[t]he death of black subjects or the invisibility of blackness serves to
ward off a nation’s collective dread of the inevitable. Someone else bears the burden of the
national id; someone else (always already) dies Wrst.”62 The relation of pure force, in relation to the
history of the BLA, articulates centrally through the regime of the prison, as both the logical geographic
destination for the policed black radical/revolutionary subject and the productive site for a
technology of power/domination that prioritizes the disintegration of these captured black bodies,
with profound effects on their communities of origin and (political) identification. The otherwise
isolated and invisible scenes of bodily violence produced at these sites of policing and
imprisonment compose a readily available material for reenacted virtual spectacle, produced as
elemental weaponry for the regime’s practical technology of power. Reembodying the Fanonian “native”
through their testimonials, Shakur, BukhariAlston, and Washington invite a rendition of the state that threads the continuity of terror,
suffering, and bodily disarticulation into the ontology of America’s incorrigibles. The experiences of countless captive radicals,
revolutionaries, and “common” or social prisoners (including children and those incarcerated under the auspices of mental illness)
similarly contradict Foucault’s allusion to “the disappearance of the branded, dismembered, burnt, annihilated body of the tortured
criminal” under the rise of the modern Euro-American penitentiary.63 The racialized and gendered speciWcity of the aforementioned
narrations of carceral violence differentiate both the severity and the regulated vulnerability of certain imprisoned subjects to the
regime’s spectrum of bodily-psychic violence. The repression of the BLA, in particular, illuminates the normalized
proximity of black bodies to the state’s most profound and disarticulating technologies of
violence. This coerced intimacy with death and normative bodily disintegration reveals the prison
regime’s hierarchical organization of violence as a prototyping of white supremacy. As a statemediated and state-sanctioned logic of social and carceral organization, this white supremacy thrives from its
sustenance of easily populated frontiers and death zones, historically reproduced through the
state’s prioritized access to abject black, indigenous, and Third World bodies. As such, the U.S.
prison regime must be conceptualized as something akin to a white-supremacist “mode of
production” that proliferates and hierarchizes a site-speciWc technology of domination: the
material logic of the U.S. prison regime, in its current form, DOMESTIC WAR ZONES – 71 coheres through
the white-supremacist vectoring of a multiply scaled, though consistently mass-based, immobilization and disintegration.
Solvency – rehab good
Rehabilitation solves—empirics—less financial expenses and reduces
recidivism rates
Lamparello, 1—B.A. from University of Southern California, Associate Professor of Law
Mercer University Walter F. George School of Law, and Associate Attorney (Adam, "Reaching Across Legal Boundaries: How
Mediation Can Help the Criminal Law in Adjudicating "Crimes of Addiction"", Ohio State Journal on Dispute Resolution,
Lexis)//emchen
Drug courts are paradigmatic examples of alternative dispute resolution mechanisms that reject the
traditional punishment paradigm in adjudicating drug offenders. 159 In doing so, the drug courts have discovered
the promise of rehabilitation and demonstrated the compatibility of utilizing rehabilitation in an
alternative dispute resolution forum. In this part, I examine the efficacy of three such programs in New Jersey, Florida, and
Oklahoma. 1. The New Jersey Experiment: A Success Story for Rehabilitation In New Jersey, non-violent drug offenders are
now diverted from the traditional criminal process. In these cases, most participants plead guilty, waive their right to a trial, and then embark on
an ambitious alternative treatment program. 160 Subsequent to their guilty plea, drug offenders are assigned to judges,
prosecutors, public defenders, and treatment experts, who, instead of punishment, design a plan of treatment and rehabilitation for [*363] the offender.
161 Instead of working against each other, prosecutors, defense lawyers, and even judges collaborate on the best method to lead an offender onto the path
of recovery. 162 Since its implementation in May 1997, more than 300 adults have experienced New Jersey's Drug Treatment program in lieu of the
By implementing
rehabilitation, these programs are effectively reducing recidivism rates among drug offenders in
criminal courts. 163 The success of this program has been laudable in comparison to the criminal courts.
New Jersey. For example, a study conducted by the State Department of Corrections found that the recidivism rate for drug offenders who were
processed through drug court was a mere twenty-three percent. 164 In Essex County alone, of the sixty adults who have gone through the drug treatment
program, only one individual has been charged with a new offense. 165 Conversely, the rate for those offenders who were adjudicated through the
traditional criminal process and given prison terms was seventy percent--three times as high. 166 At the national level, the recidivism rate for repeat
offenders who are [*364] processed through the criminal courts is even higher--at seventy-seven percent. 167 Furthermore, because of their success, the
drug courts in New Jersey have received the imprimatur of judges, prosecutors, and public defenders. 168 Assistant Deputy Public Defender Yvonne
Segars suggests the drug courts is "one of the best things that's happened in criminal jurisprudence in decades." 169 Attorneys are also heralding the
informal structure of the drug courts. Essex County Prosecutor Joseph Donahue explains, "if you sat in one of the meetings, I'm not sure you'd know who
was the prosecutor and who the public defender . . . it's not in the true sense adversarial--we're not playing our traditional roles." 170 Essex County
Superior Court Judge Paul Vichens also lauds the program, stating, "I don't speak through a lawyer. I speak to the participants every week. We talk about
problems and good things happening in their lives." 171 The program is so popular with legal personnel that one judge is even making house calls to
monitor the status of drug offenders in the program. 172 In addition, drug
courts, as opposed to the criminal courts, are
saving New Jersey a significant amount of financial resources . While it costs ninety dollars a day to keep a
drug offender in jail, the cost at a treatment center [*365] ranges from forty-five to sixty-five dollars per day. 173 Bruce Stout, Governor Whitman's
senior policy advisor, confirms that it costs less to treat offenders than to put them in prison. 174 Moreover, Assistant Attorney General Ronald Susswein
explains that "financial benefits are undeniable if savings from the drop in recidivism are added to the revenue created when participants pay taxes." 175
The program in New Jersey is successful because both the community and the offender benefit from the reduction in drug activity. Whereas
criminal courts have been ineffective in reforming drug offenders, 176 the drug courts are a proven-and
hopefully lasting-success in eradicating the offender's addiction. Ultimately, this benefits the
community in two ways. First, the public safety is enhanced through a reduction in drug activity and
drug-related crimes. Second, reformed offenders have the opportunity to become productive members
of their respective communities. As Susswein states, "'You get better results, greater public safety, savings in tax payer money,' and . . . 'if this
breaks the cycle of addiction, what could be better than that?'" 177 In New Jersey, drug courts, as an alternative dispute resolution mechanism, are an
undeniable success in part because of their emphasis on rehabilitation, not retribution. [*366] 2. The Florida Initiative: Rehabilitation in Action Since its
inception in 1996, Florida drug courts are becoming primary tools in the battle against drug addiction. 178 As in New Jersey, individuals who are
convicted of non-violent drug possession are now being diverted from the traditional criminal courts in favor of Florida's drug court paradigm. 179 The
drug courts strive to alleviate the substance abuse problems that afflict many offenders, and judges are granted increased discretion to fashion programs
that respond to the needs of individual participants. 180 Once an offender is accorded a treatment program, he undergoes regular status hearings and
counseling sessions that monitor the progress of the respective offender. 181 Indeed, the supervision in the drug court program is often more intensive
than in the correctional system. 182 As in New Jersey, by alleviating the substance abuse problem, the drug courts in Florida are significantly reducing
the recidivism rate among these offenders. In Duval County, Florida, the recidivism rate for drug offenders is an astonishing 0.7%. 183 Similarly, in
Okaloosa County, Florida, the recidivism rate stands at 6%. 184 Furthermore, the drug treatment programs in Florida are assisting in overall community
safety. In a statewide study of Florida drug courts, less than 20% of all participants were re-arrested for violent misdemeanor or felony violations. 185
These accomplishments are astonishing in contrast to the recidivism rates for offenders who did not undergo treatment for their addiction. In Florida
alone, the recidivism rate for offenders who go [*367] untreated through the drug courts is 70%. 186 Clearly, this data demonstrates that the
rehabilitation model is a significant factor in Florida's successful battle against crimes of addiction. Florida drug courts are receiving
widespread approbation because their rehabilitative approach seeks to address the insidious addictions that underlie these crimes . James R.
McDonough, Director of the Florida Office of Drug Control, supports utilization of the drug courts, "what they do is get to the core of the problem." 187
This is especially important because many crimes of addiction are motivated by substance abuse problems. "They either committed the crime to
get the drug or they were high on the drug when they committed the crime." 188 McDonough explains that if drug treatment is not embraced, "what
happens is the average inmate gets out after forty-eight months and goes right back to the culture he came from . . . he is still an addict, he still has those
tendencies or cravings to go to drugs." 189 Because of their success in fighting the addiction problem, Governor Jeb Bush has endorsed the drug court
effort, recently calling for greater expansion of the drug courts in Florida's effort to reduce the 1.2 million drug users estimated to exist in Florida. 190
The expansion of the drug courts and its widespread support stem from the fact that they are getting results and eradicating a problem that has
Florida is also saving a significant amount of
financial capital. Under Florida's drug courts, the average cost of treating a drug defendant is approximately $ 1,800 per year. 191 This figure
consistently plagued the traditional courts. In accomplishing these objectives,
pales in comparison to the $ 26,000 it costs per year to keep an offender in prison. 192 However, the savings in money represent only the beginning. By
rehabilitating addicted offenders, these individuals have the opportunity to become contributing members of society. Drug Program Administrator Carl
Reeves contends, "if we get people clean and find them employment, they're going to pay taxes instead of making us pay for them in the jails." 193 There
[*368] are now thirty-two drug courts in Florida, 194 and the plans for expansion amount to a realization that rehabilitation is working, and through this,
the community, the state, and even the offender, are benefiting. 3. Rehabilitation in Oklahoma: An Emerging Success Oklahoma has adopted an
approach similar to New Jersey, as non-violent drug-offenders are now being diverted to treatment programs in lieu of punishment. Each drug court
consists of a team that includes representatives from law enforcement, judicial, and treatment fields. To qualify for the program, offenders must plead
guilty to their drug-related charges, waive the right to a trial, sign a contract with the court, and agree to a treatment plan. 195 Once participants enter the
program, they undergo frequent supervision by the court. 196 As part of their negotiated pleas, participants must scrupulously adhere to the
treatment plan, or face prison terms. 197 Participants in the program traditionally volunteer for the drug courts rather than experiencing the criminal
court system. 198 As in New Jersey and Florida, drug courts in Oklahoma are reducing the recidivism rate. The drug court in Seminole County,
Oklahoma celebrates that 80% of drug court participants have not committed new crimes. 199 In Pontotoc County, District Judge Tom Landrith similarly
reports that 80% of participants in their drug program have not committed new offenses. 200 [*369] Furthermore, District Judge Charles Hill asserts that
the majority of offenders who utilize drug court are eradicating their addictions and becoming
productive members of their communities. 201 By reducing recidivism, drug courts seem to be offering a solution that eluded the
retributivist minded criminal courts. 202 As Bronstad explains, For years now, substance abuse offenders have been in a revolving door of
substance abuse, crime, incarceration, re-offense and re-incarceration. These people continue to recycle through the system,
because their substance abuse problem is not being treated . Drug Courts are helping to break
that cycle, which ultimately benefits all of us . 203 White House Drug Policy Director Barry McCaffrey agrees with the
rehabilitation approach of drug courts, concluding that "society benefits...by giving non-violent drug offenders a
second chance rather than jail time." 204 Both participants and judges are heralding the success of the rehabilitation-centered
approach of the drug courts. Bronstad explains, "drug courts aren't soft on crime, they're tough on addiction." 205 Judge Hill echoes the drug courts'
success in Oklahoma, maintaining that "they stop abusing drugs, or whatever they are doing to support that addiction." 206 Sandra Bruner, a long-time
drug abuser whose addiction was treated through the drug courts, asserts, "this program has given me back my life . . . if it was not [*370] for this
program, I would either be dead or in the penitentiary." 207 Kay Allen, Director of Youth and Financial Services suggests that as a result of drug courts,
"we see . . . individuals and families who are starting to get help, people who otherwise wouldn't ask for help." 208 Oklahoma District Judge Doug
Haught echoes this enthusiasm, declaring that the drug court "is very rewarding . . . when these kids succeed, we clap and cheer . . . it's worth it because
it's personally rewarding." 209 Like the drug courts in New Jersey and Florida, the Oklahoma initiative is saving taxpayers a significant amount of
financial resources. 210 State Drug Court planner JoAnn Bronstad explains that, "not only are we helping certain offenders . . . but we are also saving the
state millions of dollars that won't have to be spent on incarcerating non-violent offenders." 211 While
it costs the state $ 15,000 a
year to keep someone in prison, the average cost of treating addiction is only $ 2,800 per year . 212
In Oklahoma County alone, the drug court has saved the county almost $ 1.9 million in less than a year. 213 McCaffrey re-enforces this sentiment, stating
that "the first thing you do is save the cost to the prison system." 214 The
rise, and subsequent success of drug courts, is not
surprising because it focuses on the substance abuse problems that lie at the heart of crimes of [*371]
addiction. 215 The success of the drug courts has spawned the proliferation of drug courts nationwide. 216 These courts have
accomplished what the retributivist-driven criminal courts could not--a reduction in recidivism, judicial costs,
and consequently, safer communities . 217 In contrast to their counterparts in the criminal courts, New York drug courts
boast a 75% graduation rate and mere 20% recidivism rate. In Pittsburgh, drug courts have reduced recidivism rates to less than 33%. A recent study
confirmed these results, stating that only 10 to 33% of drug court graduates are re-arrested for new offenses. 218 Contrast this with the 77% recidivism
rate among those processed through the traditional courts, and the drug courts have clearly shown that, for certain crimes of addiction, rehabilitation, not
punishment is the best solution in our effort to reform these offenders. Accordingly, the drug courts have made a believer out of many who had formerly
endorsed retributivism. Judge Hill declares, "I firmly believed in locking them up . . . but that just does not work. The drug court is the only program I've
seen that works." 219 McCaffrey likewise hails drug courts as "the best thing we've got so far to deal with it." 220 Clinical Psychologist Dr. Normann
drug courts not only
restored the rehabilitative ideal, but also have affirmatively shown that in certain settings,
punishment is a wholly ineffective end for dealing effectively with crimes of addiction. [*372] Drug
courts have fashioned a successful solution to the ends part of our inquiry. They have clearly shown the
efficacy of rehabilitation in dealing with one category of crimes of addiction. Drug courts have shown that when the
traditional criminal courts attempted to utilize rehabilitation, the end itself was not the problem,
rather, the traditional, formal adjudicatory means in which rehabilitation was administered represented
the problem. Accordingly, the second aspect of this inquiry commences by searching for a means solution where rehabilitation, and the attendant
Hoffman explains, "Drug Court is probably the best chance at abstinence for many abusers." 221 Through this approach,
elements necessary to impart such a solution, can flourish. This is especially important considering that there exist additional crimes of addiction that
require adjudication within the rehabilitative methodology. 222 Thus, the question of means is particularly crucial because no theory, no matter how
noble, can be successful unless it exists in a forum conducive to its implementation. The solution to this dilemma lies in the forum of court sponsored
mediation.
The rehabilitative prison model is critical to effectiveness and less expenses—we
have statistical studies
Gilligan, 12—clinical professor of psychiatry and an adjunct professor of law at New York University (James, 12/19/12,
"Punishment Fails. Rehabilitation Works.", New York Times, www.nytimes.com/roomfordebate/2012/12/18/prison-could-beproductive/punishment-fails-rehabilitation-works)//emchen
If any other institutions in America were as unsuccessful in achieving their ostensible purpose as our prisons are, we would shut them
down tomorrow. Two-thirds of prisoners reoffend within three years of leaving prison, often with a more serious and violent offense.
More than 90 percent of prisoners return to the community within a few years (otherwise our prisons would be even more
overcrowded than they already are). That is why it is vitally important how we treat them while they are incarcerated. How could
we change our prison system to make it both more effective and less expensive?
The only
rational purpose for a prison is to restrain those who are violent, while we help them to change their behavior and return to the
would need to begin by recognizing the difference between punishment and
restraint. When people are dangerous to themselves or others, we restrain them – whether they are
children or adults. But that is altogether different from gratuitously inflicting pain on them for the sake of
revenge or to “teach them a lesson” – for the only lesson learned is to inflict pain on others .
People learn by example: Generations of research has shown that the more severely children are
punished, the more violent they become, as children and as adults. The same is true of adults, especially those in prison.
So the only rational purpose for a prison is to restrain those who are violent from inflicting harm on
themselves or others, while we help them to change their behavior from that pattern to one that is nonviolent
and even constructive, so that they can return to the community . It would be beneficial to every man,
woman and child in America, and harmful to no one, if we were to demolish every prison in this country and
replace them with locked, safe and secure home-like residential communities – what we might
call an anti-prison . Such a community would be devoted to providing every form of therapy its
residents needed (substance abuse treatment, psychotherapy, medical and dental care) and every form of education
for which the residents were motivated and capable (from elementary school to college and graduate school). Getting a college
degree while in prison is the only program that has ever been shown to be 100 percent
effective for years or decades at a time in preventing recidivism. Prisoners should be treated with
exactly the same degree of respect and kindness as we would hope they would show to others
after they return to the community. As I said, people learn by example. My colleague Bandy Lee and I have shown that
community. We
an intensive re-educational program with violent male offenders in the San Francisco jails reduced the level of violence in the jail to
zero for a year at a time. Even more important, participation in this program for as little as four months reduced the frequency of
violent reoffending after leaving the jail by 83 percent, compared with a matched control group in a conventional jail. In addition to
enhancing public safety, this program saved the taxpayers $4 for every $1 spent on it, since the lower reincarceration rate saved
roughly $30,000 a year per person. The only mystery is: Why is this program not being adopted by every jail and prison in the
country? Why are taxpayers not demanding that this be done?
The rehabilitative prison model is critical to reducing the prison population,
effectively allocating resources, and preserving the social order
Lamparello, 1—B.A. from University of Southern California, Associate Professor of Law
Mercer University Walter F. George School of Law, and Associate Attorney (Adam, "Reaching Across Legal Boundaries: How
Mediation Can Help the Criminal Law in Adjudicating "Crimes of Addiction"", Ohio State Journal on Dispute Resolution,
Lexis)//emchen
I. INTRODUCTION Modern criminal jurisprudence is experiencing a "crisis of self-definition." 1 In recent times, retributive
theory has been a central force underlying our criminal justice system. Society expects criminals
to be held "responsible" for their crimes, garnering proportionate sentences that correspond directly to the depravity of a
particular offense. Through retributivist ideology, the social order is preserved , as potential
criminals are deterred from engaging in future unlawful conduct. However, as retributivism confronts
increasing challenges from countervailing theories, the foundations of our modern criminal jurisprudence are being called into
doctrine of rehabilitation continues to emerge as an attractive alternative for
adjudicating "crimes of addiction" such as non-violent drug abuse and alcohol-related offenses. In these settings, where
question. Specifically, the
treatment is imperative, it seems implausible to refer these offenders to a criminal justice system that emphasizes penological instead
of rehabilitative objectives. Consequently, the adjudication of crimes of addiction in the criminal courts
represents a misguided approach because it fails to effectively treat the addictions that ignite
criminal acts, leaving offenders in a position to repeat offenses once incarceration terminates. This is the point
at which our criminal court system, with its emphasis on retributivist jurisprudence, is particularly vulnerable, and where alternative
dispute resolution (ADR) mechanisms, such as court-sponsored mediation, emerge as a tenable alternative. The most
efficacious method to deal with crimes of addiction is to refer offenders to institutions that can
successfully serve a rehabilitative, not retributive , function. Because of their informal and congenial
paradigm, specific ADR mechanisms, such as drug courts and [*336] court-sponsored mediation, can successfully implement the
former approach, and thus more appropriately and effectively adjudicate crimes of addiction. These mechanisms are better suited to
deal with these offenses because their informal structure allows them to address the insidious addiction that lies at the core of these
criminal acts. In this way, mediation can serve as an effective means for resurrecting rehabilitative ends that address an individual's
addiction, thereby leading offenders onto a path of recovery. In doing so, mediation can converge with the criminal law in vindicating
both society's and the victim's interest in eradicating the problem of addiction. IV. THE REHABILITATION MODEL, CRIMES OF
ADDICTION, AND ALTERNATIVE DISPUTE RESOLUTION MECHANISMS Unlike retributivism, rehabilitation is
currently a peripheral consideration in our judicial infrastructure. It does not enjoy
prominence in the criminal courts, and its detractors are far more boisterous that its supporters. 141 Under this
rehabilitation model, the proper method to "reform" an offender is through obtaining a thorough understanding of the external factors
that may underlie, and be responsible for, an individual's violation of the criminal [*360] code. 142 As a result, consideration of social,
economic, and even medical factors are wholly relevant considerations in the rehabilitative calculus. 143 This part examines the
rehabilitative model, followed by a practical examination of its application in an informal alternative dispute resolution setting,
namely the drug courts. A. Rehabilitation and the "Curative" Ideal Rehabilitation theory arose during the mid-1800s. 144
Simply stated, proponents endorse
a system that emphasizes treatment of the criminal offender, not
punishment. This view derives from the rehabilitationist's premise that criminal behavior is primarily a product of
"defective moral training," not inherent sinfulness . 145 This defectiveness is viewed as the byproduct of societal influences, not merely individual vice. 146 The natural corollary for rehabilitation
advocates is to devise a system "of moral training that would supposedly reduce the crime problem by
instilling the proper values in members of the criminal class." 147 Based on this ideology, the rehabilitation
advocate views the criminal offender as ill and in need of treatment, not morally depraved and requiring punishment. 148 The
proper aim of the penal system, then, is to reform the offender, with the goal of transforming the morally
deficient individual into a law-abiding, contributing member of society. Earlier this century, a statement by
the Philadelphia Society for Alleviating the Miseries of Public Prisoners echoed the rehabilitation sentiment: [*361] The obligations of
benevolence, which are founded on the precepts and example of the Author of Christianity, are not canceled by the follies or crimes of
our fellow creatures. . . . By the aids of humanity . . . such degrees and modes of punishment may be discovered and suggested, as
may, instead of continuing habits of vice, become the means of restoring our fellow creatures to virtue and happiness. 149 Thus, the
rehabilitation model is inevitably one of social utility. 150 Rehabilitation theory endorses a forward-looking or
consequentialist approach, one that sees treatment not only for the individual, but also for the preservation of the public welfare. 151
C. The Drug Courts: An Alternative Dispute Resolution Mechanism That Successfully Utilizes Rehabilitation for Crimes of Addiction
While the criminal system continues to utilize the retributivist model, quasi-alternative dispute resolution mechanisms
have attempted a different approach: rehabilitation and treatment .
Solvency – drugs
Drug war mass incarceration represents the predominant mode of racist
social control---prison expansion maintain racial hierarchies and prevent
black self determination
Alexander 6
[2006, Michelle Alexander is an Associate Professor of Law and Director of the Civil Rights Clinic at Stanford Law School,
“Federalism, Race, and Criminal Justice”, Chapter 16 in “Awakening from the Dream Civil Rights Under Siege and the New Struggle
for Equal justice”, pp. 219-228]
Most Americans today can look back and see slavery and Jim Crow laws for what they wereextraordinary and immoral forms of social control used to oppress black and brown
people. However, few believe that a similar form of social control exists today. What I have come to recognize is that,
contrary to popular belief, a new form of social control does exist, as disastrous and morally
indefensible as Jim Crow -the mass incarceration of people of color. There is an important
story to be told that helps explain the role of the criminal justice system in resurrecting, in a new guise, the
same policies of racial segregation, political disenfranchisement, and social stigmatization that
have long oppressed and controlled all people of color, particularly African Americans. The story begins with
federalism and its evolving methods of maintaining white supremacy . A recent twist has been added;
one that the civil rights community has failed to explain to those who do not read reports issued by the Bureau of Justice Statistics or Supreme Court decisions. In 1980, 330,000
people were incarcerated in federal and state prisons7 - the vast majority of whom were people of color. 8 Since then, the number has more than quadrupled to over 1.3 million.9
Although African American men comprise less
than seven percent of the population, they comprise half of the prison and jail population.11 Today,
one out of three African American men is either in prison, on probation, or on parole.l2 Latinos are
not far behind. They are the fastest growing racial group being imprisoned, comprising 10.9 percent of all state and federal inmates in 1985, and nineteen percent in
2003.13 We know how this happened. In 1980, the Reagan administration ushered in the War on Drugs, another major
backlash against civil rights. Although we typically think of the Reagan era backlash as attacking affirmative action and civil rights laws, the War
on Drugs is perhaps the most sweeping and damaging manifestation of deliberate indifference-or
downright hostility-to communities of color. This war, which continues today, has nothing to do with solving
drug abuse, and everything to do with creating a political environment in which communities of
color can be lawfully targeted for mass incarceration.l4 Not unlike slavery and Jim Crow, mass incarceration
provides the white elite with social benefits . By segregating, incarcerating, and rendering
unemployable huge segments of the black and brown population, the racial hierarchy remains
intact . By denying blacks an equal and adequate education, barring them from certain forms of
employment, and relegating them to the worst neighborhoods, the white elite has ensured that
whites will never occupy the bottom rung of that hierarchy. Today, slavery and Jim Crow laws no longer exist, and
affirmative action has opened doors to some, upsetting the racial caste system. Mass incarceration, however, has emerged as a new, and
arguably more durable, form of social controL's In addition to protecting their social position, mass incarceration
provides white elites with clear economic and political benefits. The prison industry is hugely profitable. Marc Mauer's
excellent book Race to Incarcerate documents the unprecedented expansion of our criminal justice system and the ways that the race to incarcerate has
devastated communities of color.16 He cites promotional literature from the prison industry, one piece of which stated: "While arrests and convictions
are steadily on the rise, profits are to be made-profits from crime. Get in on the ground floor of this booming industry now." I? Prisons have become central
to the development of many small, predominately white, rural communities, not unlike the
economic base formerly provided by plantations in the rural South .18 Moreover, the
Thirteenth Amendment, which bars slavery, provides an exception for forced labor in prisons.'9
Corporations like Victoria's Secret, therefore, commonly use prison labor, paying prisoners sweatshop wages.20 On the
political front, felon disenfranchisement laws in many states, especially those with large black populations, have tilted the scales
of power in favor of the·white electorate . 21 In fourteen states, a felon permanently loses the
right to vote; in seven states, one in four black men has been permanently disenfranchised.22 A total of
When prison and jail populations are combined, the number jumps to over two million. 10
The 2000 presidential
election illustrated the dramatic effects of felon disenfranchisement. Florida disenfranchises the most,
including six hundred thousand who have served their sentences and have been discharged from the
criminal justice system. Had those people been allowed to vote, Al Gore could have won Florida
by more than thirty-one thousand votes.24 To make matters worse, mass incarceration results in fewer
legislative seats for communities of color .25 Because the Census Bureau counts inmates as living
where they are incarcerated, rural communities that house large prisons gain a disproportionate
number of elected officials representing them in their state legislature and Congress.26 Meanwhile, no
one is representing the people of color behind bars, and the communities from which they came
lose representatives because their population has declined.27 Quickly, quietly, and with virtually no political opposition, this
new form of social control has become entrenched in the social, political, and economic structure.
Like slavery and Jim Crow, mass incarceration is predicated on the inferiority of a certain class of people,
defined largely by race. The genius of the new system is that it successfully blames the
victim ; black and brown people are segregated, stripped of political rights, and used for the
economic benefit of propertied whites because they chose to engage in criminal behavior. That
the overwhelming majority of inmates lack a basic education and only ever earned monthly
incomes ofless than one thousand dollars goes unreported.28 Similarly, scant attention is given to the
recent resegregation of schools, and how staggering proportions of black youth graduating from
their segregated, under-funded schools can barely read (discussed in chapters 3 and 12).29 The school-to-prison
track for black and brown youth reflects no racial bias, we are told; rather, these kids have chosen a
life of crime. We should not be confused or distracted by such rhetoric. While the strategies and
mechanisms of control have changed, the goals and beneficiaries remain the same. The backlash against the
1.4 million black men, or thirteen percent of the black male adult population, are either temporarily or permanently disen-franchised.23
Civil Rights Movement has produced a new method of control on a scale that was
unimaginable just twenty years ago. And this system is built to last.
Decriminalization overwhelmingly mitigates prison overcrowding and unfair
sentencing, also increases consistency between State and Federal lawempirics prove
Sapp ’14 [Fall 2014, Caroline E. Sapp is a Juris Doctor, The University of Memphis, Cecil C. Humphreys School of Law; M.A.
2011, Tennessee Technological University; B.S. 2005, Tennessee Technological University. “ARTICLE: EREHABILITATE OR
INCARCERATE? A COMPARATIVE ANALYSIS OF THE UNITED STATES' SENTENCING LAWS ON LOW-LEVEL DRUG
OFFENDERS AND PORTUGAL'S DECRIMINALIZATION OF LOW-LEVEL DRUG OFFENSES” Cardozo Journal of
International and Comparative Law 23 Cardozo J. Int'l & Comp. L. 63]
Decriminalization of drugs merits discussion and debate. As such, this comparative analysis is addressed to United
States Senators, Representatives, Attorney General Eric Holder, and Rehabilitative Treatment Coordinators.
The United States
must change its focus on low-level criminal offenses. n302 Though it is a start, drug courts n303 and
Attorney General Eric Holder's memorandum n304 are not law in the United States. The United
States has not decreased or prevented drug use among its citizens, but has instead increased its
incarceration rate, prison costs, and the likelihood of continued addiction. n305 The United States
should consider decriminalizing drugs for three reasons: (1) to rehabilitate rather than incarcerate
drug offenders; (2) to reduce prison populations and cut costs; n306and (3) to focus on higherlevel drug traffickers. First, prevention and rehabilitation should be the focus of the United States'
drug laws. Addiction is an illness n307 and should be addressed as a public health issue, not as a criminal offense. n308 Portugal's
drug policy recognizes this point. n309 Portugal removed the stigma attached to drug users, implemented treatment options, and freed
up resources to create treatment centers. n310 Similarly, the United States should follow suit and remove the
drug stigma by shifting the focus [*95] from incarceration to rehabilitation, n311thus freeing up
federal prison resources to create more treatment centers. n312 Furthermore, the decriminalization
procedure would work similarly to state drug court procedures. n313 For example, there are three main
issues in decriminalizing drugs: (1) labeling a former criminal offense as a civil offense; n314 (2)
implementing administrative [*96] committees to determine whether a low-level drug offender
receives a sanction, an oral warning, or if the user must seek treatment; and (3) the inability to
terminate an offender's participation in the proceeding. n315 Second, decriminalizing drugs would
likely decrease the prison population and cut prison costs. n316 Each year, almost 2,000,000 Americans are arrested for drug-related
crimes. n317 Almost 500,000 Americans are in jail for drug-related offenses. n318 In 2010, the economic burden of keeping inmates
incarcerated was $ 80 billion dollars. n319 By decriminalizing drugs, low-level drug offenders would not
receive lengthy prison sentences that use both the government's resources in time and money yet
not address the main issue: drug use and abuse. Third, decriminalizing drugs allows the federal
government to focus on higher-level drug traffickers who move large quantities of drugs. By
implementing a decriminalization model like Portugal's, the United States would still hold individuals accountable for their wrongs,
n320 but without separating the low-level drug offender from the high-level drug trafficker. For example, Stephanie would still
receive a prison sentence in Portugal because she possessed more than a ten-day dose. n321 Under Portugal's laws, she would serve
four to twelve years in prison. n322 This Article calls to Congress and encourages discussion on
decriminalizing drugs. n323 Decriminalization is the more comprehensive [*97] and superior
system with regards to addressing the United States' drug problems. The status quo of mass
incarcerationand avoidance of rehabilitating drug users leaves those offenders addicted to drugs
continually pushed into prisons. Congressional criminalization of drug offenses, i.e. the status
quo, leaves the United States government underfunded, with overcrowded prisons and wasted
resources. Congress must act and address its failing drug laws.
Solvency – mandatory minimums
Mandatory minimums should be revoked- they cause fabricated testimonies
and wrongful convictions
Luna and Cassell 11 - Professor of Law∂ and Law Alumni∂ Faculty Fellow,∂ Washington and∂ Lee University∂ School of
Law, Ronald N. Boyce∂ Presidential∂ Professor of∂ Criminal Law,∂ University of Utah∂ S.J. Quinney∂ College of Law
Erik Luna and Paul G. Cassell, February 2011, University of California Press, Vera Institute of Justice, “Sense and Sensibility in
Mandatory Minimum Sentencing”, JSTOR, 7/6/2015, BD.
I. Introduction∂ Criticisms of mandatory prison sentences in the federal∂ system have become well known and are increasingly∂
accepted. These mandatory minimums are said to deprive∂ judges of the flexibility to tailor
punishment in individual∂ cases and can result in unduly harsh sentences. As such,∂ they are inconsistent
with the tradition of individualized∂ sentencing in federal courts and the deeply rooted principle∂ of proportionality.1∂ Mandatory
minimums can also∂ conflict with the separation of powers doctrine by transferring∂ punishment
decisions from the judiciary to the∂ executive branch, thereby converting federal prosecutors∂ into
de facto sentencers.2 Many mandatory minimum∂ cases implicate federalism concerns as well,
given that∂ gun and drug prosecutions in U.S. District Courts involve∂ conduct already
criminalized by the states and handled∂ predominantly by local courts.3∂ In practice, statutory minimums can
distort the processes∂ and outcomes of the federal system. Inconsistent∂ applications of mandatory minimums generate disparate∂
sentences among similarly situated offenders.4 Some∂ basic fact may trigger the same minimum sentence for
a∂
low-level drug courier and a narcotics kingpin, for example,∂ while enormous differences in
punishment can result∂ from the seemingly arbitrary lines drawn for drug-quantity∂ thresholds.
Disparate sentences may also result from a∂ race to the prosecutor’s office, with the defendant who∂ pleads first avoiding a long
mandatory minimum by∂ agreeing to testify against his codefendants.∂ Moreover, mandatory minimums raise concerns
about∂ the erosion of transparency and the truth-seeking function∂ of the criminal justice system.
The often dispositive prosecutorial∂ decisions to invoke these laws are made in a∂ largely opaque process without clear oversight to
prevent∂ haphazard (or even abusive) applications. The mechanical∂ nature of mandatory minimums can also entangle criminal∂
justice actors in a truth-obscuring stratagem of∂ negotiating critical facts, from the amount of drugs to the∂ existence of a gun.
Worse yet, a few recent cases have∂ demonstrated how mandatory minimums can generate∂
fabricated testimony and wrongful convictions.5
Mandatory minimum sentencing is the largest cause of prison overcrowding –
creates unconstitutional conditions of incarceration
Nauman 13 - J.D. University of Florida Levin College of Law; B.A. 2008, University of Florida
Steven Nauman, 5/1/2013, “Brown v. Plata: Renewing the Call to End Mandatory Minimum Sentencing”,
http://dl2af5jf3e.search.serialssolutions.com/?ctx_ver=Z39.88-2004&ctx_enc=info%3Aofi%2Fenc%3AUTF8&rfr_id=info:sid/summon.serialssolutions.com&rft_val_fmt=info:ofi/fmt:kev:mtx:journal&rft.genre=article&rft.atitle=Brown+v.+Pl
ata%3A+renewing+the+call+to+end+mandatory+minimum+sentencing&rft.jtitle=Florida+Law+Review&rft.au=Nauman%2C+Steve
n&rft.date=2013-05-01&rft.pub=University+of+Florida&rft.issn=10454241&rft.volume=65&rft.issue=3&rft.spage=855&rft.externalDBID=BSHEE&rft.externalDocID=354876378, 7/6/2015, BD
Over the past three decades, the United States has become the∂ world's largest jailor. It is no
coincidence that this period also∂ corresponds with the boom in mandatory minimum sentencing
and the∂ promulgation of the Federal Sentencing Guidelines. Empirically, there∂ can no longer be any doubt that the
American obsession with∂ punishment-ideologically embodied within mandatory minimum∂
schemes- created our incarceration disease .∂ Now with Brown v. Plata, the United States Supreme Court has∂
finally indicated that it is willing to recognize and address the issue:∂ overcrowded prisons create unconstitutional
conditions that cannot be∂ tolerated. Furthermore, the correct remedy is to reduce prison∂ populations.
Although the Supreme Court did not venture to answer the∂ remaining question of how to reduce prison populations, the primary∂
solution should be clear: if the proliferation of mandatory minimum∂ sentencing is the disease,
their abolition is the cure .
The plan is the best way to reduce prison populations
Saris 13 - Chief United States District Judge for the United States District Court for the District of Massachusetts, J.D. from
Harvard, B.A. from Radcliffe College
Patti B. Saris, 7/18/2013, “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences”,
http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-andreports/submissions/20130918_SJC_Mandatory_Minimums.pdf, 7/6/2015, BD
C. Mandatory Minimum Penalties Have Contributed to Rising Prison Populations∂ The
federal
prison population has increased dramatically over the past two decades, and∂ offenses carrying
mandatory minimum sentences have played a significant role in that increase.∂ The number of
inmates housed by the BOP on December 31, 1991 was 71,608.20 By December ∂ 31, 2012, that number had more than tripled to
217,815 inmates.21 Offenses carrying mandatory minimum penalties were a significant driver of this∂
population increase.22 The number of offenders in custody of the BOP who were convicted of∂ violating a statute carrying a
mandatory minimum penalty increased from 40,104 offenders in∂ 1995 to 111,545 in 2010, an increase of 178.1 percent.23 Similarly,
the number of offenders in∂ federal custody who were subject to a mandatory minimum penalty at
sentencing – who had not∂ received relief from that mandatory sentence – increased from 29,603
in 1995 to 75,579 in 2010,∂ a 155.3 percent increase.24∂ These increases in prison population have led
not only to a dramatically higher federal∂ prison budget, which has increased more than six
fold from $1.36 billion for fiscal year 199125 to∂ $8.23 billion this year,26 but also to significant overcrowding,
which the BOP reports causes∂ particular concern at high-security facilities and which courts have found causes
security risks∂ and makes prison programs less effective.27 Changing the laws governing
mandatory minimum∂ penalties would be an important step toward addressing the crisis in the
federal prison population∂ and prison costs.
Causes disproportionate amounts of life sentences
Mauer, Executive Director of the Sentencing Project ’15 [Mark, has directed programs on criminal
justice policy reform for 30 years, author of some of the most widely-cited publications in the field, adjunct faculty member at George
Washington University and Payne Theological Seminary, consultant to the Bureau of Justice Assistance, the National Institute of
Justice, and the American Bar Association’s Committee on Race and the Criminal Justice System, March 2015, ‘Testimony delivered
to the Charles Colson Task Force on Federal Corrections’. Pg. 2. Accessed 6 July 2015.
http://www.sentencingproject.org/detail/publication.cfm?publication_id=587&id=106/VL
Sentencing policies in the United States are much more punitive than in other modern democracies. This can
be seen most dramatically at the extreme end of the sentencing spectrum. The
United States is virtually the only
industrialized nation that employs the death penalty, with over 3,000 people on death row.5 Moreover,
the nation’s use of life sentences has expanded exponentially in recent decades, with nearly 160,000
people sentenced to life in prison, or one of every nine people in prison.6 Of this group, almost 50,000 are
serving life without parole sentences. Such whole-life sentences are exceedingly rare in other countries.
For example, in the United Kingdom, only 49 individuals are serving life sentences with no opportunity for
release.7
In the federal criminal code, many statutes authorize life imprisonment, for offenses ranging from drug
trafficking to racketeering to crimes involving firearms. At least 45 federal statutes require a life
sentence as the mandatory minimum penalty.8 According to the United States Sentencing Commission, 42% of
individuals who received a federal life sentence in 2013 had been sentenced under the terms of a
mandatory minimum penalty.9 Given the breadth by which severe sentences are imposed, sentencing scholar Michael Tonry
notes that “modern laws flatly defy conventional notions of proportionality.”
Drives prison growth
Mauer, Executive Director of the Sentencing Project ’15 [Mark, has directed programs on criminal
justice policy reform for 30 years, author of some of the most widely-cited publications in the field, adjunct faculty member at George
Washington University and Payne Theological Seminary, consultant to the Bureau of Justice Assistance, the National Institute of
Justice, and the American Bar Association’s Committee on Race and the Criminal Justice System, March 2015, ‘Testimony delivered
to the Charles Colson Task Force on Federal Corrections’. Pgs. 1-2. Accessed 6 July 2015.
http://www.sentencingproject.org/detail/publication.cfm?publication_id=587&id=106/VL
As the Urban Institute has documented, the federal prison population is driven by the combination of two factors:
volume of admissions and length of time served.2 Of these two factors, sentence length, 2 particularly
for federal drug offenses, has been the major contributor to federal prison growth in recent years.
According to a study by the Urban Institute, between 1998 and 2010, an increase in time served was
by far the leading determinant of growth in the federal prison population, accounting for over half of the
increase during that time.3
Addressing excessive incarceration will require reforms that address both the “front end” and the
“back end” of the federal sentencing regime. However, for reasons both political and practical, strategies that address the
length of prison terms after a sentence has been imposed are limited in their ability to produce large and sustained reductions in prison
populations.4 No other policy shift would have the impact of reducing lengthy prison sentences .
Harsh minimums have a spillover effect that drive all other sentences higher
Mauer, Executive Director of the Sentencing Project ’15 [Mark, has directed programs on criminal
justice policy reform for 30 years, author of some of the most widely-cited publications in the field, adjunct faculty member at George
Washington University and Payne Theological Seminary, consultant to the Bureau of Justice Assistance, the National Institute of
Justice, and the American Bar Association’s Committee on Race and the Criminal Justice System, March 2015, ‘Testimony delivered
to the Charles Colson Task Force on Federal Corrections’. Pgs. 2-3. Accessed 6 July 2015.
http://www.sentencingproject.org/detail/publication.cfm?publication_id=587&id=106/VL
Because sentencing systems are proportional, extreme penalties exert an upward pressure on offenses
at all levels of severity. According to the American Law Institute, the most severe penalty in a criminal
sentencing scheme serves as an “anchor point,” defining the scale of the penalties beneath it. 11 3
“Arguably, the entire scale of authorized sanctions has some tendency to be stretched upward, or compressed
downward, depending on where the absolute maximum is located.”12
As law professor Jonathan Simon has written, extreme sentences -- particularly life sentences -- have had
an “inflationary effect” on the entire structure of punishment and the overall scale of criminal penalties.13 The “high
price” for murder (i.e. often death or a life sentence) eases the way for harsher sentences for all manner of less
serious offenses such as burglary, larceny, and drug selling.14 Indeed, during the 1980s and 1990s, as
the average time served for murder increased by 238%, trends in time served for many other crime
types also showed growth.15 It follows that if the most extreme punishments are less severe, punishments for less serious
offenses will be less severe as well. Doing so would place the United States closer to the sentencing severity range of comparable
nations since “…the United States generally imposes longer sentences on persons sentenced to incarceration than other industrialized
nations.”16
These issues are particularly prevalent in the federal system, due to the combination of the presumption
of incarceration in the sentencing guidelines structure, the use of mandatory penalties for many drug and gun offenses,
the 85% truth in sentencing requirement, and the imposition of life prison terms, even for
nonviolent offenses. Each of these features pushes the length of federal prison terms higher.
Harsh minimums bad- laundry list
Mauer, Executive Director of the Sentencing Project ’15 [Mark, has directed programs on criminal
justice policy reform for 30 years, author of some of the most widely-cited publications in the field, adjunct faculty member at George
Washington University and Payne Theological Seminary, consultant to the Bureau of Justice Assistance, the National Institute of
Justice, and the American Bar Association’s Committee on Race and the Criminal Justice System, March 2015, ‘Testimony delivered
to the Charles Colson Task Force on Federal Corrections’. Pgs 3-4. Accessed 6 July 2015.
http://www.sentencingproject.org/detail/publication.cfm?publication_id=587&id=106/VL
Most offenders “age out” of crime. Research shows that after peaking in the mid-to-late teenage years,
offending begins to decline as individuals are in their 20s and drops sharply as they reach their 30s and
40s.17 As a result, for each successive year of incarceration there are diminishing returns for crime
control. As the National Research Council concluded, “Because recidivism rates decline markedly with age, lengthy prison
sentences, unless they specifically target very high-rate or extremely dangerous offenders, are an inefficient approach to
preventing crime by incapacitation.”18
• False promise of long sentences for public safety. Support
for extremely long sentences, such as life and life without
parole, is premised in part on the assumption that individuals receiving such 4 sentences will reoffend
if released. However, an analysis by The Sentencing Project found that individuals released from life sentences
were less than one third as likely to be rearrested within three years compared to other formerly incarcerated
individuals.19
• Caring for aging prisoners is extremely expensive. The
cost of housing aging prisoners rises substantially, due
in large part to increased healthcare costs. Because Medicaid and Medicare funds may not be used to provide treatment to
prisoners, healthcare costs generally must be borne by correctional facilities.20
• Opportunity costs. Long sentences also incur opportunity costs, as they divert resources and attention
from other public safety measures. For example, public funds spent on prisons are not available to
invest in crime prevention initiatives such as early childhood education, therapeutic interventions for at-risk
youth, and treatment for substance abuse and mental illness.
Federal mandatory minimum sentences are unjustifiably harsh and unfair
Weinstein 3 - Associate Professor of Law, Fordham University School of Law
Ian Weinstein, 2003, Hein Online, “Fifteen Years after the Federal Sentencing Revolution: How Mandatory Minimums Have
Undermined Effective and Just Narcotics Sentencing”,
http://heinonline.org/HOL/Print?collection=journals&handle=hein.journals/amcrimlr40&id=97, 7/8/2015, \\BD
It is very difficult to find praise for federal narcotics sentencing.177 The currently∂ pervasive
mandatory minimum statutes make narcotics sentences indefensibly ∂ rigid, often unfair and
unjustly harsh. The excessive rigidity mutes the systemic∂ feedback that would encourage efficiency. The emphasis on
drug quantity instead∂ of culpability causes great unfairness by inequitably sanctioning offenders.
Most∂ importantly, we are imprisoning people for many years and destroying lives and∂ families
while gaining nothing . 178∂ The excessive harshness and rigidity of narcotics sentences has
resulted in a∂ long-term trend of declining average sentences, very high but falling rates of∂
substantial assistance departures, increasing rates of judicial departures, and∂ increasingly rare
trials. The long-term decrease in average sentence lengths has∂ received attention. As Hofer and Semisch first noted, narcotics
sentences peaked in 1992 and have steadily declined since then, from a high of 77.4 months in 1992 to ∂ 68.5 months in 1998, an
11.5% decline.1 79 The average has continued to decline∂ and narcotics sentences are between fifteen percent and twenty percent
lower than∂ they were in 1992. 80 This steady and significant decrease distinguishes this very∂ large group
of sentences from others imposed in the federal courts.∂ The most thoughtful commentators in this area, Bowman
and Heise, have∂ analyzed a variety of factors that could explain the decrease in sentence length, ∂ including changes in the law,1 8'
changes in case type, 8 2 types of defendants∂ prosecuted, 8 3 prosecutorial caseload, and other local factors. 84 Bowman and∂ Heise's
analysis suggests that these changes are responsible for a portion of the∂ decrease in sentence length.' 8 5 They conclude, however,
that some of the decrease∂ stems from prosecutors' and judges' use of discretion to reduce sentences.' 86∂ Bowman and Heise must be
right, as prosecutors clearly can maintain stable∂ sentence length over time even in the face of increasing mitigation rates. The∂
suggestion that something else must explain the continued decline in narcotics∂ sentences is strengthened by the observation that
average sentence length appears∂ to continue to decrease even as cooperation departures have fallen and judicial∂ departures have
risen.
Abolishing Mandatory minimum laws for non-violent drug offenses stems
mass incarceration rates
Zachary ’14 [Fall 2014, Whitley Zachary is part of Tarrant County Bar Association, Texas A&M Law Review, and student at
Texas A&M University School of Law “COMMENT: PRISON, MONEY, AND DRUGS: THE FEDERAL SENTENCING SYSTEM
MUST BE MORE CRITICAL IN BALANCING PRIORITIES BEFORE IT IS TOO LATE” Texas A&M Law Review 2 Tex. A&M
L. Rev. 323 ]
V. Meaningful Change The mandatory minimum sentencing system has had negative implications since
its inception. n243 This negative impact has been most damaging through the application of
mandatory minimums in drug offenses. n244 Since Congress began attaching long mandatory
sentences to these offenses, drug offenders have filled American prisons. n245 Many of the
inmates behind bars because of these overly harsh sentences were convicted of low-level,
nonviolent drug crimes. n246 But this problem has become so acute that it threatens to devastate on
a national level if something is not done soon. n247 "From the White House to Congress, there is a growing
consensus that mandatory minimums are an abject failure, wasting billions of tax dollars and
destroying communities," said Jasmine Tyler of theDrug Policy Alliance. n248 There is nothing new about
the suggestion that reforms need to be made to the sentencing system or drug offense sentencing in particular, but efforts are too
minor to make the sort of impact that is desperately needed. n249 Instead of adjusting the length of
mandatory terms, reducing triggering quantity disparities, creating loopholes, and shifting policy
directives, the system itself needs comprehensive change or society will suffer and resources will
dwindle. A. Abolish Mandatory Minimums in Drug Offenses Immediately Considering that
mandatory minimum sentences have failed to produce expected results, it is likely in the best
interest of the criminal justice system to abandon them entirely. n250 Such a significant leap requires time and
carefully calculated actions but should not be brushed aside. In the meantime, prison overcrowding and deficit budgets remain an
immediate concern. n251 Because almost 50% of the prison population is serving sentences for drug
offenses, that area of law is in foremost need of a direct and effective action. The sentencing
system as a whole is over-complex and difficult to use, but mandatory minimums in drug offenses
have clearly proved ineffective and must be discontinued. n253 This harsh sentencing scheme is
funneling far too many people into prison for drug offenses to serve mandatory minimum
sentences that lawmakers should eradicate immediately to alleviate their crippling costs. n254
While the Commission refines the sentencing guidelines for drug offenses, judges and
prosecutors must be trusted to use their discretion in punishing defendants with appropriate and
warranted sentences. n255 Because the guidelines were written to reflect the mandatory minimums, the sentencing
guidelines for all drug offenses will need to be entirely restructured. n256 B. Reevaluate the Current
Prison Population and Budget Prison should be reserved for those most deserving of the
punishment and those least fit to be in the community. n257 An important factor in sentencing policy is that
federal resources should be used where most necessary. n258 Subjecting low-level drug offenders to long prison $=P350 sentences
does not necessarily serve a vital purpose. n259 The current prison population should be assessed to identify
individuals who are not a threat to society and would greatly benefit from a rehabilitation-focused
program. n260 Instead of allocating resources to incarcerate drug offenders, budgets could be
reassessed in order to provide more funds for drug courts, community programs, and
rehabilitation. n261 Removing the least culpable offenders from the prison system and committing
them instead to treatment programs would free up funding for more effective uses and would
afford the offender a greater chance of recovery. n262 Of course, not all drug offenders should avoid incarceration
and the most serious or dangerous drug offenders should be the focus of law enforcement and prosecutors. Long prison
sentences are appropriate for some offenders, but sentencing guidelines need restructuring to
reflect that not all drug crimes are equal. n263 C. A "New" Federal Sentencing System Congress acted impulsively
when it rushed into establishing mandatory minimums after it had just produced a well-designed, insightful plan for sentencing. n264
The Sentencing Commission had just been created but had not been given the chance to carry out their assigned tasks. n265 If
mandatory minimums could be wholly revoked along with the instructions from Congress to have
the guidelines reflect those mandatory sentences, then the sentencing system originally proposed
in the SRA would be a viable solution. n266 The Commission is entirely capable of creating the fair,
effective sentencing guidelines envisioned in 1984. n267 As it has been fulfilling its
responsibilities to evaluate and review sentencing practices and data, as well as analyzing the
downfalls of mandatory minimums, the Commission would be able to not only address the most problematic areas
quickly but also refine the entire system over time. n268 The Commission has been often criticized for overly harsh sentences, but
Congress has been directing it to update the guidelines to reflect the statutory minimums. n269 The Commission should start at the
fundamentals and ensure a consistent, fair, and effective system. n270 Because the Commission knows what does not work, it is more
than equipped to succeed. Moreover, now that the sentencing guidelines are advisory, unintended consequences previously
experienced should prove easier to avoid. n271 VI. Conclusion The federal sentencing system of the last few
decades has not been particularly successful and the exponential growth of the prison population
has been creating a culture of mass incarceration. n272 In addition to housing a disproportionately large number of
prisoners, the federal government has also poured an astonishing amount of money into incarceration, and the costs continue to rise
every year. n273 Regrettably, a large portion of this massive growth in the federal prison system is attributable to the proclaimed "war
on drugs." n274 Regardless of the legitimacy of this "war on drugs", it is disconcerting that such a large portion of incarcerated drug
offenders are low-level offenders, rather than major traffickers or kingpins. n275 Recently, Attorney General Holder caught
everyone's attention by advocating for sentencing reform and instituting federal charging policies that permit avoidance of $=P352
mandatory minimums. n276 But this charging policy is a temporary directive and, unless Congress makes
substantive changes to the law, Holder's campaign for reform is just a campaign. n277 In Holder's
words: "Although incarceration has a role to play in our justice system, widespread incarceration
at the federal, state and local levels is both ineffective and unsustainable." n278 The structure of this
broken sentencing system needs to be radically and comprehensively simplified by ending the use
of mandatory minimum statutes. n279 Furthermore, immediate action would alleviate prison overcrowding and deficit
budgets. n280 The Sentencing Commission, which from the outset Congress buried underneath mandatory minimums, needs the
opportunity to wipe the slate clean and begin functioning as originally intended. The
necessary components for
restructuring the sentencing system for efficiency and intended purpose already exist, but this
broken system will continue to cause more damage until the proper authorities receive the power
to do so
Solvency – AT policing alt caus
The WOD actually is the reasoning behind irrational police and SWAT team
violence using military equipment – the impact of this is voilence and distrust
of the system in urban communities
Alexander ‘10 (Alexander, Michelle. associate professor of law at Ohio State University, a civil rights advocate and a writer.
The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: New, 2010. Print.)
In barely a decade, the War on Drugs went from being a political slogan to an actual war. Now that police departments were suddenly flush
with cash and military equipment earmarked for the drug war, they needed to make use of their new resources. As described in a Cato Institute
report, paramilitary units (most commonly called Special Weapons and Tactics, or SWAT, teams) were quickly formed in virtually every major city to fight the drug war.39
SWAT teams originated in the 1960s and gradually became more common in the 1970s, but until the drug war, they were used rarely, primarily for extraordinary emergency
situations such as hostage takings, hijackings, or prison escapes. That changed in the 1980s, when local law enforcement agencies suddenly had access to cash
and military equipment specifically for the purpose of conducting drug raids. Today, the most common use of SWAT teams is to serve
narcotics warrants, usually with forced, unannounced entry into the home . In fact, in some jurisdictions drug warrants are served only by SWAT
teams—regardless of the nature of the alleged drug crime. As the Miami Herald reported in 2002, "Police say they want [SWAT teams] in case of a hostage situation or a
Columbine-type incident, but in practice the teams are used mainly to serve search warrants on suspected drug dealers. Some of these searches yield as little as a few grams of
cocaine or marijuana."40 The rate of increase in the use of SWAT teams has been astonishing. In 1972, there were just a few hundred paramilitary drug raids per year in the United
States. By the early 1980s, there were three thousand annual SWAT deployments, by 1996 there were thirty thousand, and by 2001 there were forty thousand.41 The escalation of
military force was quite dramatic in cities throughout the United States. In the city of Minneapolis, Minnesota, for example, its SWAT team was deployed on no-knock warrants
thirty-five times in 1986, but in 1996 that same team was deployed for drug raids more than seven hundred times.42 Drug raids conducted by SWAT teams are not polite
encounters. In countless situations in which police could easily have arrested someone or conducted a search without a military-style raid, police blast into people's homes,
typically in the middle of the night, throwing grenades, shouting, and pointing guns and rifles at anyone inside, often including young children. In recent years, dozens of people
have been killed by police in the course of these raids, including elderly grandparents and those who are completely innocent of any crime. Criminologist Peter Kraska reports that
between 1989 and 2001 at least 780 cases of flawed paramilitary raids reached the appellate level, a dramatic increase over the 1980s, when such cases were rare, or earlier, when
they were nonexistent.43 Many of these cases involve people killed in botched raids. Alberta Spruill, a fifty-seven-year-old city worker
from Harlem, is among the fallen. On May 16, 2003, a dozen New York City police officers stormed her apartment building on a no-knock
warrant, acting on a tip from a confidential informant who told them a convicted felon was selling drugs on the sixth floor. The informant
had actually been in jail at the time he said he'd bought drugs in the apartment, and t he target of the raid had been arrested four days before, but the officers
didn't check and didn't even interview the building superintendent . The only resident in the building was Alberta, described by friends as a "devout
churchgoer." Before entering, police deployed a flash-bang grenade, resulting in a blinding, deafening explosion. Alberta went into cardiac arrest and died two hours later. The
death was ruled a homicide but no one was indicted. Those who survive SWAT raids are generally traumatized by the event. Not long after Spruill's death,
Manhattan Borough President C. Virginia Fields held hearings on SWAT practices in New York City. According to the Village Voice, "Dozens of black and Latino victims—
nurses, secretaries, and former officers—packed her chambers airing tales, one more horrifying than the next. Most were unable to hold back tears as they
described police ransacking their homes, handcuffing children and grandparents, putting guns to their heads, and being verbally (and
often physically) abusive. In many cases, victims had received no follow-up from the NYPD, even to fix busted doors or other physical damage."44 Even in small towns,
such as those in Dodge County, Wisconsin, SWAT teams treat routine searches for narcotics as a major battlefront in the drug war. In Dodge County, police raided the
mobile home of Scott Bryant in April 1995, after finding traces of marijuana in his garbage. Moments after busting into the mobile home, police shot
Bryant—who was unarmed— killing him. Bryant's eight-year-old son was asleep in the next room and watched his father die while
waiting for an ambulance. The district attorney theorized that the shooter's hand had clenched in "sympathetic physical reaction" as his other hand reached for handcuffs.
A spokesman for the Beretta company called this unlikely because the gun's double-action trigger was designed to prevent unintentional firing. The Dodge County sheriff
compared the shooting to a hunting accident.45 SWAT raids have not been limited to homes, apartment buildings, or public housing projects. Public high schools have been
invaded by SWAT teams in search of drugs. In November 2003, for example, police raided Stratford High School in Goose Creek, South
Carolina. The raid was recorded by the school's surveillance cameras as well as a police camera. The tapes show students as young as
fourteen forced to the ground in handcuffs as officers in SWAT team uniforms and bulletproof vests aim guns at their heads and lead a
drugsniffing dog to tear through their book bags. The raid was initiated by the school's principal, who was suspicious that a single
student might be dealing marijuana. No drugs or weapons were found during the raid and no charges were filed. Nearly all of the
students searched and seized were students of color. The transformation from "community policing" to "military policing," began in 1981, when
President Reagan persuaded Congress to pass the Military Cooperation with Law Enforcement Act , which encouraged the military to give local,
state, and federal police access to military bases, intelligence, research, weaponry, and other equipment for drug interdiction. That legislation carved a huge exception to the Posse
Comitatus Act, the Civil War—era law prohibiting the use of the military for civilian policing. It was followed by Reagan's National Security Decision Directive, which declared
drugs a threat to U.S. national security, and provided for yet more cooperation between local, state, and federal law enforcement. In the years that followed, Presidents
George Bush and Bill Clinton enthusiastically embraced the drug war and increased the transfer of military equipment, technology,
and training to local law enforcement, contingent, of course, on the willingness of agencies to prioritize drug-law enforcement and
concentrate resources on arrests for illegal drugs.
Impact – anti-blackness
Drug and Incarceration policies/rhetoric are underwritten by the depiction of
blackness as the zero point of humanity, the pathologically criminal, and the
naturally oppressed
Drucker ’13 [2013, Ernest Drucker is Professor Emeritus in the Department of Family and Social Medicine, Montefiore
Medical Center/Albert Einstein College of Medicine; Adjunct Professor of Epidemiolog, Columbia University Mailman School of
Public Health, “Article: Drug Law, Mass Incarceration, and Public Health” Oregon Law Review 91 Or. L. Rev. 1097]
Social Injustice in Mass Incarceration A. Continued Racial Disparities in Incarceration Despite these signs of substantial progress in
acceptance of new drug policies that can further reduce the size of the U.S. prison population, many of the most important
and unjust disparities of mass arrests and incarceration continue unabated - and some have
worsened. The most significant of these continue to be related to our longstanding racial and ethnic
disparities in imprisonment, which are still vast. n97 "African Americans now constitute nearly 1
million of the total 2.3 million incarcerated population," a rate of 2,200 per 100,000 members of
the population - "nearly six times that of whites," or 400 per 100,000. n98 "African Americans and [Latinos]
comprised 58% of all prisoners in 2008, even though African Americans and Latinos make up" only 30% of the U.S. population. n99
"If African Americans and [Latinos] were incarcerated at the same rates [as] whites, today's prison and jail populations would decline
by approximately 50%." n100 As of 2001, one of every six black men in America (a rate of 15%) had been
incarcerated n101 - and that figure is now higher: the Bureau of Justice Statistics estimates that if current
trends continue, one in every three black males born today can expect to spend time in prison
during his lifetime. n102 In addition, African American women are imprisoned at a rate triple that of
white [*1116] women. n103 Nationwide, African Americans represent about 12% of the U.S. population yet account for
"26% of juvenile arrests, 44% of youth who are detained, 46% of the youth who are [sent] to criminal court, and 58% of the youth
admitted to state prisons." n104 Drug sentencing disparities continue to dominate these statistics and drive prison rates. "About
[fourteen] million Whites and 2.6 million African Americans report using an illicit drug" - five times as many Whites as African
Americans (and a higher rate in the white population as well). n105 "Yet African Americans are sent to prison for drug offenses at
[ten] times the rate of Whites." n106 "African Americans represent 12% of the total population of drug users, but 38% of those
arrested for drug offenses, and 59% of those in state prisons" who are there for a nonviolent drug offense. n107 "African Americans
serve virtually as much time in prison for a drug offense (58.7 months) as whites do for [all] violent offenses (61.7 months)." n108
These disparate rates of punishment for blacks are not due to any greater use or sales of illicit
drugs. Indeed, recently published research from Columbia's New York State Psychiatric Institute
employed large national datasets to convincingly demonstrate lower rates of both drug use and
drug offenses for blacks versus whites in the United States. n109 While this representative sample
of African American adolescents found that they were less likely than whites to have been
engaged in either drug use or drug selling, nonetheless, blacks in this national survey were far
more likely to have been arrested for drug offenses. n110 [*1117] Policing and law enforcement
practices also reflect the striking scope of racial disparities in our criminal justice system. Chief
among these has been the "stop and frisk" policing policies in New York City - where over three million stops
and body searches of young men were conducted between 2003 and 2012, almost exclusively in minority neighborhoods. n111 In a
sign of new resistance to such policies, this highly publicized concentration of racially disparate policing has provoked new legal
challenges and public calls for greater police accountability. n112 In January 2013, a Manhattan federal judge ruled that these stop and
frisk policies were unconstitutional and also ordered police to stop making trespass stops outside private residential buildings
immediately - the ruling is under appeal by the New York Police Department. n113 The racial disparities of mass incarceration in
America have also stimulated a rich body of historical scholarship and literature linking it to past patterns of racial injustice, prejudice,
and violence. n114 The New Jim Crow, Michelle Alexander's very influential work on the role of race in mass incarceration, has
brought a new awareness of the deep roots and long history of large-scale racial disparities in U.S. law enforcement and imprisonment
- among them, the startling recognition that our current rates of incarceration of blacks equal the scale
reached at the peak of American slavery in 1864, with over four million blacks brutally
subordinated in both systems. n115 Alexander's book is in addition to the many specific studies of race and
drug use that find no evidence to warrant the higher arrest and imprisonment rates of blacks for
drug offenses - revealing the origins of higher [*1118] arrest and prosecution rates in the history
of American racial prejudice. In his award-winning 2010 book, The Condemnation of Blackness: Race, Crime, and the
Making of Modern Urban America, historian Khalil G. Muhammad, Director of the New York Public Library's Schomburg Center for
Research in Black Culture, identifies the "condemnation of blackness" as a deep-rooted American belief
linking African Americans with crime, a perceived association that affects both police conduct
and the use of imprisonment. n116 A foundation of this prejudice is the use of the racial disparities in imprisonment - rather
than biased policing and prosecution practices - to support widespread popular belief in the higher criminality of blacks. n117 This is
in sharp contrast to the more progressive views taken of the roots of crime and effects of imprisonment among poor whites.
Muhammad notes that "compassionate progressives and social scientists" of the early twentieth century "treated the white workingclass and immigrant criminals sympathetically: they were victims of the dehumanizing effects of poverty and isolation, a "great army
of unfortunates.'" n118 At the same time, the architects of social policy in the Progressive era routinely labeled blacks as "selfdestructive and pathological[,] their "own worst enemies,'" and warned black college graduates that "criminality is in the ultimate
analysis a greater danger to your race than any other thing can be." n119 Muhammad and other scholars of our nation's racial history
now identify "liberal approaches to crime, gang, and violence prevention" - including "anti-vice crusades, public recreation,
community policing, and prison rehabilitation in the urban North" - as "for whites only," lasting well into the second half of the
twentieth century. n120 The Condemnation of Blackness and many other works "reveal[] the untold
history of how progressives deemed white criminality society's problem, but told blacks to work
out their own salvation."n121 This view is even embedded (unwittingly?) in President [*1119]
Obama's "no excuses" posture, in which striving blacks are expected to overlook this aspect of
their own history. This condemnatory history extends well into the present era, drawing energy
from the War on Drugs, which continues to fuel condemnatory public perceptions of blacks and
still drives racial disparities in incarceration. A New York Times editorial on January 4, 2013, marking the 150th
anniversary of Lincoln's signing of the Emancipation Proclamation ending slavery in the Northern states, took the occasion to note the
newest evidence of widespread (and increasing) anti-black sentiment in America. n122 Columnist Charles Blow reported that both a
PEW poll released in April 2011 and a 2012 CNN poll found negative attitudes about blacks to be increasing. n123 This was
confirmed in October 2012 in a survey by the Associated Press, which found that "51 percent of Americans now express explicit antiblack attitudes, compared with 48 percent in a similar 2008 survey." n124 "When measured by an implicit racial attitudes test, the
number of Americans with anti-black sentiments jumped to 56 percent, up from 49 percent during the [2008] presidential election."
n125 Further these racial disparities and prejudices are not simply a problem for America's blacks. Nobel Prize winner in economics
Joseph Stiglitz explains that racial disparities and the wide extent of our social and economic inequality
now threaten America's economic recovery and seriously diminish many of our nation's future
social prospects. n126
Impact – racism
The criminal justice system is racially biased at nearly all levels- especially
policing and sentencing
---not just a question of economics because class differences do not matter if you’re not white
Ghandnoosh, PhD, ’15 [Nazgol, research analyst at The Sentencing Project who conducts and synthesizes research on
criminal justice policies, February 2015, ‘Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System.’ Pgs. 10-12.
Accessed 6 July 2015. http://www.sentencingproject.org/detail/publication.cfm?publication_id=577&id=120/VL
Class differences did not fully explain this racial disparity: black drivers under age 40 were over
twice as likely as their white counterparts to experience investigatory stops for both the highest- and
lowest-valued cars. Traffic-safety stops, the researchers concluded, are based on “how people drive,” whereas investigatory
stops are based on “how they look.”
Nationwide surveys also reveal disparities in the outcomes of police stops. Once pulled over, black and Hispanic
drivers were three times as likely as whites to be searched (6% and 7% versus 2%) and blacks were twice
as likely as whites to be arrested during a traffic stop.39 These patterns hold even though police officers
generally have a lower “contraband hit rate” when they search black versus white drivers .40
A recent investigation of all arrests – not just those resulting from traffic stops – in over 3,500 police departments
across the country found that 95% of departments arrested black people at a higher rate than other racial
groups.41 The cumulative effect of these policies is that 49% of African American men reported having been
arrested by age 23, in contrast to 38% of their non-Hispanic white counterparts.42 The next section of this briefing paper will
examine how much of this disparity stems from differential crime rates.
The nature of police encounters also differs substantially for people of color compared to whites. Several surveys conducted between
2002 and 2008 have shown that Hispanics were up to twice as likely and blacks were up to three times as likely
as whites to experience physical force or its threat during their most recent contact with the police.43
More broadly, when a 1999 Gallup survey asked Americans about perceptions of police brutality in their neighborhoods, 58% of
people of color said police brutality took place in their area, in contrast to only 35% of whites.44 Police officers’ greater
use
of discretion when stopping people of color suggests that differences in drivers’ behavior alone are unlikely to
account for disparities in use of force.
People of color are therefore more likely than whites to be arrested – in part due to differences in crime rates but
also due to differences in police policies and use of discretion. Once arrested, people of color are also likely to be
charged more harshly than whites; once charged, they are more likely to be convicted; and once
convicted, they are more likely to face stiff sentences – all after accounting for relevant legal
differences such as crime severity and criminal history.45 A recent comprehensive scholarly review conducted by
the National Research Council concluded that:
Blacks are more likely than whites to be confined awaiting trial (which increases the probability
that an incarcerative sentence will be imposed), to receive incarcerative rather than community
sentences, and to receive longer sentences. Racial differences found at each stage are typically modest, but their
cumulative effect is significant.46
If recent trends continue, one of every three black teenage boys can expect to go to prison in his
lifetime, as can one of every six Latino boys – compared to one of every seventeen white boys. 47
Smaller but still substantial racial and ethnic disparities also persist among women.
Implicit Bias is everywhere and has very real/tangible effects
Ghandnoosh, PhD, ’15 [Nazgol, research analyst at The Sentencing Project who conducts and synthesizes research on
criminal justice policies, February 2015, ‘Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System.’ Pgs. 16-17.
Accessed 6 July 2015. http://www.sentencingproject.org/detail/publication.cfm?publication_id=577&id=120/VL
While most white Americans no longer endorse overt and traditional forms of prejudice associated with the era of Jim Crow racism –
such as beliefs about the biological inferiority of blacks and support for segregation and discrimination – a nontrivial proportion
continue to express negative cultural stereotypes of blacks.64 Even more common among most white Americans, and many
people of color, is
implicit racial bias: unintentional and unconscious racial biases that affect decisions
and behaviors. Psychological experiments have shown that these biases are pervasive in our society,
and are held even by people who disavow overt prejudice.65 Implicit racial biases also permeate the work of
criminal justice professionals and influence the deliberation of jurors.66
In experimental research such as video simulated shooter studies, subjects are asked to quickly identify and shoot armed suspects, or
to press another button to not shoot unarmed suspects. Participants more quickly and accurately decided to shoot
an armed target when that person was African American, but more quickly and accurately chose not to shoot if the
unarmed target was white.67 When researchers conducted this study with a predominantly white group of Denver-based police
officers, they found that the officers were less likely than the general public to mistakenly shoot at black unarmed suspects.68
However, officers more quickly shot at armed black suspects than at armed white suspects. The researchers concluded that while these
officers exhibited bias in their speed to shoot, their experience and training reduced bias in their decision to shoot.69
Studies of criminal justice outcomes also reveal that implicit biases influence the decisions of criminal justice
professionals. Researchers have analyzed the extent to which implicit bias affects the work of police officers, prosecutors,
judges, and other members of the courtroom work group.
• Police: As described in Sections I and II, many jurisdictions continue to experience
significant racial
disparities in police stops. Police have been more likely to pull over people of color for what researchers call investigatory
stops. Once pulled over, blacks and Hispanics were three times as likely as whites to be searched, and blacks were twice as likely as
whites to be arrested during a traffic stop.
• Prosecutors: Prosecutors are more likely to charge people of color with crimes that carry heavier
sentences than whites.70 Federal prosecutors, for example, are twice as likely to charge African
Americans with offenses that carry mandatory minimum sentences than otherwise-similar whites. State
prosecutors are also more likely to charge black rather than similar white defendants under habitual offender laws.
• Judges: Judges are more likely to sentence people of color than whites to prison and jail and to give
them longer
sentences, even after accounting for differences in crime severity and criminal history.71 In federal cases, the
sentencing disparities between noncitizens and citizens are even larger than those between people of color
and whites.72 The race penalty, research from the 1990s revealed, is harshest for certain categories of people and offenses: it
particularly affects men and the young, and is more pronounced for less serious offenses. In effect, young black men are
perceived as being more dangerous because of their race and socioeconomic characteristics.
• Other members of the courtroom work group: Unconscious racial bias has been found in many other corners
of the criminal justice system. A study in Washington state found that in narrative reports used for sentencing, juvenile
probation officers attributed the problems of white youth to their social environments but those of
black youth to their attitudes and personalities.73 Defense attorneys may exhibit racial bias in how they
triage their heavy caseloads.74 Racially diverse juries deliberate longer and more thoroughly than
all-white juries, and studies of capital trials have found that all-white juries are more likely than racially
diverse juries to sentence individuals to death.75 Studies of mock jurors have even shown that people exhibited
skin-color bias in how they evaluated evidence: they were more likely to view ambiguous
evidence as indication of guilt for darker skinned suspects than for those who were lighter skinned.76 Finally, an
investigation of disparities in school discipline – including rates of out-of-school suspensions and police referrals – led the
Departments of Education and Justice to declare that the substantial racial disparities in school discipline “are not
explained by more frequent or more serious misbehavior by students of color,” but suggest
racial discrimination.77
Sentencing laws disproportionately affect minorities
Ghandnoosh, PhD, ’15 [Nazgol, research analyst at The Sentencing Project who conducts and synthesizes research on
criminal justice policies, February 2015, ‘Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System.’ Pg.15.
Accessed 6 July 2015. http://www.sentencingproject.org/detail/publication.cfm?publication_id=577&id=120/VL
Sentencing laws that are designed to more harshly punish certain classes of offenses, or to carve out certain groups from harsh
penalties, also
often have a disparate impact on people of color. This occurs because of how
sentencing laws interact with broader racial differences in our society and within the criminal
justice system.
• Drug-free school zone laws mandate sentencing enhancements for people caught selling drugs
near school zones. The expansive geographic range of these zones coupled with high urban density has
disproportionately affected residents of urban areas, and particularly those in high-poverty areas –
who are largely people of color.62 A study in New Jersey found that 96% of persons subject to
these enhancements in that state were African American or Latino. All 50 states and the District of
Columbia have some form of drug-free school zone law.
• Diversion programs and alternative courts disproportionately bar people of color from
alternatives to incarceration because they frequently disqualify people with past convictions.63
• “Three
strikes and you’re out” and other habitual offender laws disproportionately affect people
of color who are more likely to have criminal records.
Empirics- massive racial disparity
Dickinson 6/24 [Tim, Rolling Stone, (2015). Why Isn't More Happening to Reduce America's Bloated Prison Population?.
[online] Available at: http://www.rollingstone.com/politics/news/why-isnt-more-happening-to-reduce-americas-bloated-prisonpopulation-20150624 [Accessed 6 Jul. 2015]./VL
According to a 2014 report on mass incarceration by the National Academies of Sciences, more black men born in the
post-Civil Rights era have served time in prison than graduated from a four-year college. Where
one in 87 white men is in jail or prison, for African-American men the number is one in 12. The
U.S. has less than five percent of the world's population, but nearly a quarter of its prisoners. As 2016 Democratic dark horse and
longtime reform advocate Jim Webb writes, "Either we are home to the most evil people on Earth or we
are doing something dramatically wrong in how we approach criminal justice."
Penal system has negative impact on communities
Lynch and Sabol, 02- (James P. Lynch is a professor and chair of the Department of Justice Law, and Society at American
University- William J Sabol is assistant director at the US general Accounting Office) Chapter 6: Effects on Informal Social Control
In Communities From “Imprisoning America: The Social Effects of Mass Incarceration” p. 135-136, Russle Sage Foundation, NY
2002, print//droneofark
Over the past twenty years, the United States has experienced a massive Increase in imprisonment
(Lynch and Sabol 1997; Blumstein and Beck L999). From 1980 and 2002, U.S. prison populations increased from
about 330,000 persons (Gilliard and Beck 1996) to more than 2 million (Harrison and Beck 2003). The estimated
number of persons who had ever been Incarcerated in state or federal prisons increased from 1.8 million in 1974 to more than 5.6
million in 2001 (Bonczar 2003). It is generally conceded That this increase in incarceration was driven primarily
by shifts in policy toward more punitive treatment of drug, habitual, and violent offenders
(Blumstein and Beck 1999; Western, Kling, and Weiman 2001). The unprecedented increase in the use of
incarceration has raised impacts about its impacts on crime and has also led to speculations about
Its possible unintended negative consequences for individuals, families, and communities.
Evaluations of the crime control impacts of incarceration suggest that it has contributed to
reductions in violent crime by incapacitating offenders (Cohen and Canela-Cacho 1994); that increases in
time served arising from administrative decisions (for example, parole release) deter the commission of
index crimes (Levitt 1996; Nagin 1998); and that increases in incarceration for drug offenders may have
contributed to reductions in property and violent crimes (Kuziemko and Levitt 2001). On the other hand,
the increased incarceration of drug offenders has not generated deterrent or incapacitation effects
on drug offenders, largely because incarcerated drug offenders were replaced by younger
offenders who, during the 1908s and early 1990s, were also more prone to use violence to resolve disputes
(Caulkins et. Al 1997; Blumstein 1995). In general however, th e evidence seems to suggest that while aggregate
crime rates 136 have declined in response to expanding prison capacity and that further expansions
of capacity are likely to result in further reductions in crime, not enough is known about the
magnitude of the relationship between increases in incarceration and reductions In crime to
determine whethei additional expansion of prison capacity is warranted (Spelman 2000), The
unprecedented increase in incarceration has also led to theorizing that both its increase and its
clustering in certain areas or among certain subpopulations can have unintended negative
consequences for individuals, families, and communities (Lynch and Sabol 1992; Rose and C'leai 1998a, 1998b;
Clear 1996; Moore 1996; Nightingale and Watts 1996). Research on the impact of prison terms on the economic
consequence for individuals shows time in prison produces large and persistent effects on
employment and earnings (Grogger 1995; Kling 1999). Bruce Western (2002) estimates that the earnings loss
associated with incarceration ranges from 10 to 30 percent and finds that serving time in prison is
also associated with decreased earnings growth. When findings such as these arc combined with
data (discussed later in this chapter) indicating that in a given year more than 10 percent of young African
American men in some neighborhoods enter prison, it becomes clear that prison terms, although not
necessarily the cause of economic disadvantage, are not likely to enhance the economic position of potentially
large portions of (particularly male) residents of disadvantaged neighborhoods (see chapter 8 in this volume).
Impact – racism – mm specific
Mandatory minimum sentencing is racist – disproportionally affects people of
color
Fischman and Schanzenbach 12 - Associate Professor of Law, Northwestern University; Professor of Law,
Northwestern University
Joshua B. Fischman and Max M. Schanzenbach, December 2012, Journal of Empirical Legal Studies, “Racial Disparities Under the
FederalSentencing Guidelines: The Role of Judicial Discretion andMandatory Minimums”,
http://onlinelibrary.wiley.com.proxy.lib.umich.edu/doi/10.1111/j.1740-1461.2012.01266.x/epdf, 7/6/2015, BD
Despite the Guidelines’ reduction of interjudge disparity, most studies have con-cluded that large racial
disparities persist under the Guidelines. McDonald and Carlson(1994) found that racial disparities in
sentencing increased after the adoption of theGuidelines, but they attributed most of this effect to
the difference in mandatory minimumsfor crack and powder cocaine. In a detailed study of post-Guidelines
sentencing, Mustard(2001) found substantial unexplained racial differences even after controlling for
detailedoffense characteristics, with blacks receiving one-third fewer departures than whites and
10percent longer prison sentences than whites. What causes the observed disparities has notbeen convincingly
established, but there is some reason to be skeptical that judicial tem-perament is an important factor. Using district-level variation,
Schanzenbach (2005) con-firmed the existence of racial disparities in sentencing but found no evidence
that thesedisparities were affected by the race, gender, or political orientation of the judges in adistrict.8
Discretion in enforcement exacerbates racial disparities
Fischman and Schanzenbach 12 - Associate Professor of Law, Northwestern University; Professor of Law,
Northwestern University
Joshua B. Fischman and Max M. Schanzenbach, December 2012, Journal of Empirical Legal Studies, “Racial Disparities Under the
FederalSentencing Guidelines: The Role of Judicial Discretion andMandatory Minimums”,
http://onlinelibrary.wiley.com.proxy.lib.umich.edu/doi/10.1111/j.1740-1461.2012.01266.x/epdf, 7/6/2015, BD
Some commentators have suggested that prosecutorial discretion to enforce minimum penalties is exercised
in a manner that exacerbates racial disparities. The U.S.Sentencing Commission (1991) qualitatively categorized
cases in which a mandatoryminimum could have been applied, and found that 46 percent of white defendants were
sentenced below the mandatory minimum, compared to 32 percent of black defendants.Similarly,
Meierhoefer (1992) reported that relative to white offenders, black offenders were 21 percent more likely
to be sentenced at or above the minimum, and Hispanics were28 percent more likely. Maxfield and
Kramer (1998) also found that white offenders were significantly more likely to receive substantial
assistance departures than minority offend-ers, and that white offenders also received slightly
larger sentence reductions for substantial assistance.
Impact – sexual control
Incarceration controls women sexual freedoms- especially those of African
Americans
Drucker ’13 [2013, Ernest Drucker is Professor Emeritus in the Department of Family and Social Medicine, Montefiore
Medical Center/Albert Einstein College of Medicine; Adjunct Professor of Epidemiolog, Columbia University Mailman School of
Public Health, “Article: Drug Law, Mass Incarceration, and Public Health” Oregon Law Review 91 Or. L. Rev. 1097]
B. Increased Incarceration of Women In the last [twenty-five] years, the number of women and girls caught in the
criminal justice system has skyrocketed; many [women] have been swept up in the "war on
drugs" and subjected to increasingly punitive sentencing policies for non-violent offenses. [*1120]
There are now more than 200,000 women behind bars and more than one million on probation and parole. Many of these women
struggled with substance abuse, mental illness, and histories of physical and sexual abuse. Few get the services they need. The toll
on women, girls, and their families is devastating. n127 In addition to the racial disparities noted above, women are
now among the groups with the fastest growth rate in all prison systems. "Although just 7.2% of the entire population is in prison or
jail, the percentage of women behind bars exploded 757% between 1977 and 2004, a number nearly
twice as great as the increase in the incarcerated male population during the same period." n128 "The
number of women in prison - along with the number of women giving birth in prison - continues to rise each year," n129 where it is
now part of a dramatic reversal in women's health. A significant shift towards white women can be observed as well, as the blackwhite disparity between women in prison was cut in half from six-fold to three-fold. n130 Researchers recently reported a five-year
drop in the life expectancy of poor white women over the last fifteen years. n131 The increased incarceration of women
for drug offenses has, in some states, now become a proxy for the nation's resurgent abortion
battles - especially to help some Southern states' and their courts' efforts to avoid Roe v. Wade.
The linkage of women's drug use and their increased risks for incarceration represents a cynical
strategy to pervert child-protection statutes, using them as a lever to make gains in limiting
women's reproductive rights. [*1121] In a 2012 article in the American Journal of Public Health, Roe v Wade and the New
Jane Crow, legal scholar and leading reproductive rights advocate Lynn Paltrow shows that many of the state increases in
female imprisonment are a result of "efforts to establish separate legal "personhood' for fertilized
eggs, embryos, and fetuses" and are "being used as the basis for the arrests and detentions of and
forced interventions on pregnant women, including those who seek to go to term" - i.e., a
program of seizure of their newborns under child protection laws. n132 Paltrow emphasizes that these cases
reveal that both pregnant women who have abortions and those who do not are already being arrested and incarcerated at high rates driven by the overall high rates of drug-related arrests and incarcerations of women of child-bearing
age - "creating a Jane Crow system of laws that disproportionately punishes African American
women." n133 This situation underscores the "pressing need to dismantle the US system of mass
incarceration [by also] opposing the recriminalization of abortion and passage of so-called
personhood measures that would expand it." n134 A paper by Paltrow and Flavin now identifies and details 413 cases
of arrests and forced interventions on pregnant women in the United States between 1973 and 2005 where the pregnancy was the basis
of arrest and prosecution because drugs were involved. n135 The everyday cruelties of imprisonment also now bear down especially
hard on pregnant women. Approximately 200,000 women are incarcerated in U.S. jails and prisons each year, and approximately
12,000 of those are pregnant while incarcerated. n136 Even
while pregnant, incarcerated women are routinely
subjected to harsh treatment, such as shackling. n137 Shackling pregnant women is degrading
and unnecessary, and violates human rights, but only ten [*1122] states currently prohibit the
practice. n138 None of these jurisdictions have reported escapes or security threats from pregnant
prisoners since prohibiting shackling. n139
Women subject to domestic abuse kill their partners as a last resort- this
causes them to be subject to mandatory minimum encarceration
Shuman 13 - J.D. Candidate, Howard University School of Law, Class of 2013; Senior Notes & Comments Editor, Howard
Law Journal, Vol. 56, 2012-2013; B.A., Sociology, University of Wisconsin, Madison, 2007
Lauren Danice Shuman, 2013, “Pulling the Trigger: Shooting Down Mandatory Minimum Sentencing for Victims Who Kill Their
Abuser”,
http://bsc.chadwyck.com.proxy.lib.umich.edu/search/proxyProquestPDF.do?PQID=3039538821&collectionsTag=&format=&fromPa
ge=, 7/6/2015, BD
The scenario described above is just one instance of an abused∂ woman who survived after years of living in fear of her abusive
partner.∂ Unfortunately, not every woman is provided with the opportunity∂ to safely regain control of
her life. “In the United States, women∂ are more likely to be attacked, injured, raped, or killed by a
current or∂ former male partner than by all other types of assailants combined.”3∂ Domestic violence
occurs between members of a household when∂ one member uses a pattern of coercive tactics in order to establish and ∂ maintain
power and control.4 Many battered women who do survive∂ often face a secondary restraint when they
fight back to protect themselves:∂ imprisonment.5 Believing there is only one remedy for ending∂
the abuse and ensuring survival, battered women kill their abuser.6∂ As a result, these survivors are
charged with murder and are incarcerated∂ for lengthy periods of time. Without a “get out of jail free card”7∂
or room for judicial discretion, these survivors are sent to jail as a∂ direct result of mandatory minimum
sentencing policies.∂ Mandatory minimum sentencing provisions refer to “statutory∂ provisions requiring the imposition of a
sentence of at least a specified∂ minimum term of imprisonment when criteria set forth in the relevant ∂ statute have been met.”8
Today, mandatory minimum sentences are∂ used at both the federal and state levels in an effort “to provide tough,∂ uniform, fair, and
economically efficient punishment for criminals in∂ America.”9 Nearly all states have passed “determinate sentencing∂ schemes” and
mandatory minimum laws similar to the federal sentencing∂ guidelines for violent felonies.10 Mandatory minimum
sentencing∂ results in zero possibility of early release, as it ensures that a∂ defendant will serve
the designated mandatory minimum of his or her∂ sentence in prison.11
This leads to domestic violence and reinforces gender stereotypes
Shuman 13 - J.D. Candidate, Howard University School of Law, Class of 2013; Senior Notes & Comments Editor, Howard
Law Journal, Vol. 56, 2012-2013; B.A., Sociology, University of Wisconsin, Madison, 2007
Lauren Danice Shuman, 2013, “Pulling the Trigger: Shooting Down Mandatory Minimum Sentencing for Victims Who Kill Their
Abuser”,
http://bsc.chadwyck.com.proxy.lib.umich.edu/search/proxyProquestPDF.do?PQID=3039538821&collectionsTag=&format=&fromPa
ge=, 7/6/2015, BD
Inflexible mandatory minimum sentencing results in unfair punishment,∂ perpetuates gender
stereotypes, inadequately deters future∂ domestic violence, and creates an undue financial burden
on the community.12∂ For some women, home is a place of greater danger than∂ public places—more dangerous than the
workplace, more dangerous∂ than the highway, more dangerous than city streets.13 Yet, too often, these victims of abuse become
defendants facing mandatory minimum∂ incarceration for killing their abuser.14 Mandatory sentencing produces∂ gender
disparities in the criminal justice system, as “[b]attered∂ women who kill often receive harsher
sentences than men who murder∂ their wives or lovers.”15 The average sentence for a man who
kills∂ his wife or girlfriend is two to six years.16 In comparison, women receive∂ sentences of fifteen
years.17 The difference in sentence lengths∂ occurs because battered women use a gun or weapon to protect
themselves∂ from abuse more frequently than men, who more often use∂ their bare hands.18 Thus,
women face longer jail sentences than men∂ because the weapon involved in the crime raises the offense to a violent ∂ felony.19∂ Trials
often end in convictions of first-degree murder for women∂ accused of killing their abusive partners.20 Abused women are
often nvicted because the circumstances surrounding their homicidal acts∂ do not meet the
requirements of current self-defense laws.21 The elements∂ to prove self-defense are: the use of equal or lesser force∂
against someone when the person apprehends imminent and unlawful∂ deadly force.22 In addition, the non-aggressor, and a
reasonable person,∂ must believe the deadly force was necessary, with no ability to∂ retreat.23 It is difficult for
domestically abused defendants to prove∂ self-defense because the women often kill their abusers
when it is∂ “safe.”24 For instance, many battered women kill their abuser while∂ he is sleeping; thus, they
fail to meet the element of “imminent”∂ harm.25 Unfortunately, current self-defense laws do not reflect the∂ real
circumstances that most battered women experience, and the defendants∂ are thus unable to meet
the elements of self-defense.26
Impact – biopolitics
The prison system has become a societal process to be strived for- a form of
subjugation essential to continuing structures of the world
Rodriguez ’06 [2006, ,Dylan Rodríguez is Professor and Chair of the Department of Ethnic Studies at UC Riverside. He
received his Ph.D. and M.A. degrees in Ethnic Studies from the University of California, Berkeley (2001), and earned two B.A.
degrees and a Concentration degree from Cornell University (1995). “Forced Passages Imprisoned Radical Intellectuals and the U.S.
Prison Regime” ]
There is, however, no structuring exterior or ulterior motive to the FORCED PASSAGES – 245 state’s
technology of violence and domination in the supermax prison, nor within the broader production of the
prison regime. The structurally manifest political desire of the prison regime’s technology of
immobilizing (and deadly) violence is, in the case of Jackson’s inaugural imprisonment, Rosenberg’s High Security
Unit, Tate’s fatal SHU yard, and Dortch’s Klan bath, intrinsic to the biopolitical technology of the “torture”
itself: that is, the isolation, social liquidation, and immobilization of human beings on scales of
Xexible and racially hierarchized magnitude. The organizing logic of the prison industrial
complex writ large is echoed and embodied in the vernacular of death spoken by radical captives such as Jackson and
Rosenberg. Both, among countless of their (currently and formerly) imprisoned cohorts, invoke a conception of the prison
within a continuum of dying, or “being dead,” that crucially expands the historical scope of the
prison regime’s genealogical linkages to other forms of human domination and massively
structured bodily violence. In this sense the prison has become, akin to the Middle Passage, more
than simply a means to an end. It is, in objective and in fact, an end in itself. The prison, in the
lineage of the slave vessel, has become essential to the production of a new social formation: the
technologies of social reproduction, juridically formalized civil death, and mass-based social
death converge and collapse as the durable geographic (spatial) production of this regime. In turn,
this spatialized intersection of oppressive technologies “places” and signiWes the blood work of white (“multicultural”) life and
subjectivity, as it is insistently and fatally lived against black and Third World death and ontological subjection. Kumasi Aguila
(Stephen Simmons), a principal author of the 1970 Folsom Prisoners Manifesto, inhabits and theorizes the prison as a space/place of
saturated and accumulated absence, death, and social irreconcilability in a series of passages from his 1969 prison letters: It is
useful to meditate on Jackson’s and Rosenberg’s “living death,” and Aguila’s “liquidation,” as a
densely shared political vernacular organic to what Fanon might call the formative “social truth”
of the prison regime. Fanon’s work spurs the Wnal theoretical connection I draw between captive radical intellectuals and the
larger political imaginary of radical prison praxis.
The prison presumption is a state tool of dehumanization and subject
formation
Rodriguez ’06 [2006, ,Dylan Rodríguez is Professor and Chair of the Department of Ethnic Studies at UC Riverside. He
received his Ph.D. and M.A. degrees in Ethnic Studies from the University of California, Berkeley (2001), and earned two B.A.
degrees and a Concentration degree from Cornell University (1995). “Forced Passages Imprisoned Radical Intellectuals and the U.S.
Prison Regime” ]
First, I am concerned with the production of punitive carcerality as both a discursive and bodily
convergence between technologies of punishment (the punitive) on the one hand, and bodily capture or
institutionalized immobilization on the other (the carceral). Imprisoned activist Walter James, writing from
the Security Housing Unit at Tehachapi State Prison (California), offers a concise and incisive explication of
punitive carcerality as a logic of spirit-killing or dehumanization: As a state and cultural formation,
punitive carcerality shapes both the popular intelligibility and the self-narration of the state’s
otherwise abstracted or inaccessible dominion of power, legitimacy, and authority. Yet, this penal
statecraft thrives from its own endemic insufWciency and structured institutional failure to
evaporate or fully neutralize dissent, resistance, and incorrigibility among its captive subjects—in
fact, the prison regime requires and produces such institutional crisis as a premise for its constant
revision and reinvention of technologies of domination. James’s communiqué from Tehachapi manifests the
prison regime’s interpellation if not production of radically politicized captive subjects, including organic critics of its modalities of
rule. Second, this chapter addresses the speciWcity of state terror as a broadly proliferated technology of domination that is organic to
the prison regime’s dominion. I am interested in theorizing the extension and distension of state violence through its production of a
rigorously constricted space of human subjection, wherein a primary fulcrum of power becomes the regimentation of a determinant
and interpellating terror, that is, an acutely coercive structure of feeling and experience. My attempt at generating a revised, working
conceptualization of state terror partly responds to Annamarie Oliverio’s critique of exceptionalist deWnitions of the term: My
conception of “state terror,” while focused on what Oliverio would consider the self-evident institutional and geographic site of the
prison, departs from conventional deWnitions by focusing on the production of terror as part of the prison’s—and state’s—regimes of
the “everyday,” or what I invoke above as the construction of an American “way of life.” Following radical attorney and legal theorist
Jill SofWyah Elijah’s historical overview of the institutional genesis of contemporary “conditions of conWnement,” I consider
state terror as an essential and formative, rather than excessive or exceptional, facet of statecraft
and social formation. SofWyah write Imprisoned radical intellectuals speak with, against, and through
this evolved technology of state terror in a manner that compels a thorough revision of
conventional conceptions of social formation, state formation, and critical praxis. A genealogy that
centers the insurgent knowledge production of imprisoned radical intellectuals illuminates the
ways in which state power is imagined, invented, embodied, and realized through its regimes of
power as well as the constitutive antagonism fostered by its incomplete attempts to liquidate and
disarticulate captive political subjects.
Prisons are dehumanizing
Haney 6 (Craig, Ph.D. in Psychology (and J.D. in Law) from Stanford University, “Harmful Psychological Consequences and
Dysfunctional Correctional Reactions, The Prison Reform: Commission on Safety and Abuse in America's Prisons”, Hein Online)
Overcrowding, widespread idleness, and the failure of many∂ prison systems to address the basic
needs of prisoners have changed∂ the context of imprisonment. Tense prisons, ones that house too many∂
people with too little to do and whose basic needs are not being∂ addressed, present prison administrators with many
volatile and∂ potentially explosive situations. In many instances, their reactions to∂ these conflicts and crises
have been predictable but problematic,∂ serving to increase the amount of pain dispensed in
prison and, in the∂ long run, exacerbating already dangerous situations.92∂ In the face of extraordinary
increases in the number of prisoners,∂ many prison administrators pressed for new tools with which to∂ control and contain them. Most
jurisdictions gave up any pretense of∂ carefully managing the prison "careers" of inmates or effectively∂ monitoring the quality of the
conditions under which they were kept∂ during the rapid expansion of the prisoner population. Criminologists∂ Malcolm Feeley and
Jonathan Simon identified an emerging∂ penological management style in which correctional decision-makers∂ came to think about
prisoners only in the aggregate, as dangerous∂ populations that need to be herded, rather than as individuals in need ∂ 92. The criminal
justice system in general also "behaves" in response to prison∂ overcrowding in ways that sometimes make its long-term consequences
worse. For example, if∂ probation and parole services are also overtaxed by a rapid increases in the number of recently∂ released
prisoners-as most studies of these agencies seems to indicate they are-then their∂ agents will be less able to provide guidance and
meaningful supervision, or to offer services∂ designed to help probationers avoid prison and assist parolees in making a successful
transition∂ back into the free world. This would act to increase the effect of overcrowding as a result of re-∂ offending. of personal
attention.93 Indeed, in terms that captured both the∂ dehumanized consciousness of the decision-
makers and the devalued∂ status of the prisoners under their control, Feeley and Simon∂
analogized the overcrowding-driven new penological ideology as∂ akin to a "waste management"
function.94∂ Thus, rather than improving living conditions and investing in∂ prison programs and
meaningful activities in which prisoners could∂ participate, many prison systems have committed
to harsh policies∂ and procedures designed primarily to maintain rigid order and strict∂ control.
They also now rely increasingly on sophisticated and∂ expensive security hardware and
surveillance technology. Metal∂ detectors, x-ray machines, leg irons, waist chains, handcuffs,
"black∂ boxes,95 holding cages, "violent prisoner restraint chairs,"∂ psychiatric screens, chainlink fences, concertina wire, tasers, stun∂ guns, pepper spray, tear gas canisters, gas grenades,
and, in some∂ jurisdictions, mini-fourteen and nine millimeter rifles, twelve gauge∂ shotguns, and
the like now are employed inside the cellblocks of a∂ number of maximum security prisons.9
Impact – murder
United States drug policies are structure that materially and spiritually
murder generations of colored peoples
Drucker ’13 [2013, Ernest Drucker is Professor Emeritus in the Department of Family and Social Medicine, Montefiore
Medical Center/Albert Einstein College of Medicine; Adjunct Professor of Epidemiolog, Columbia University Mailman School of
Public Health, “Article: Drug Law, Mass Incarceration, and Public Health” Oregon Law Review 91 Or. L. Rev. 1097]
Despite widespread recognition of its failure, the War on Drugs continues, leaving a legacy of punishment
that worsens many public health and social problems once attributed to drugs themselves. Chief
among these is our system of mass punishment itself. We are only now beginning to appreciate
the full consequences of putting over eight million Americans in prison over the last thirty-five
years, for a total of over forty-five million person years of incarceration since 1975. n1 Examining the
history and ongoing effects of these punitive policies on such a huge population through the lens of public health, using the standard
metrics of epidemiology and life course studies, we can now identify the many risks imposed on the individuals, families, and
communities most heavily affected. This history is important for the entire population, but especially for
black men, whose rates of criminal prosecution and incarceration are at least an order of
magnitude higher than those of whites. As our system of mass imprisonment and its collateral damages have grown
dramatically, they have taken on a life of their own, perpetuating themselves by destroying family
and social capital in poor communities and damaging the pro-social family and community
structures which are the natural basis of social order and crime prevention. Instead we have fostered
the intergenerational transmission of risk for young black men, creating a "pipeline" from many
black communities directly to jails and prisons. The racially disparate application of punishment to
African Americans can be traced back to roots in slavery and the structural injustices of
Reconstruction. In the modern era, drug laws have become the instrument of racial subordination
and the rationale for harsh punishment. Our drug policies must be held accountable for many of
the public health and socially catastrophic outcomes they impose through mass incarceration premature death, mental illness, family disintegration, and increased societal violence. This is a
critical moment for the world's prohibitionist drug policies, most visible today in the surge of
violence in neighboring Mexico, which has experienced over sixty thousand murders in the
[*1099] last six years. n2 Many Latin American leaders now call on the United States to change our core assumptions about
the role of drug policy - focusing on reducing violence and forgoing punishment in favor of prevention and treatment. This Article
proceeds in the following Parts. Part I discusses trends in incarceration policy and practice and explains the advent of mass
incarceration, paying specific attention to the role of the War on Drugs. Part II further explains the growth of mass incarceration,
addressing other new "crimes" that result in incarceration. Part III discusses the disparate impacts of mass incarceration on historically
disadvantaged groups including African Americans, Latinos, and women. Part IV discusses the public health implications and effects
of mass incarceration. Finally, the Article concludes that we must replace our system of drug punishment with a public health and
therapeutic harm reduction model, responding to the all-too-real threats of potent new drugs - including many licit pharmaceutical and
"legal" drugs, as well as those of alcohol and tobacco. We can begin by building and mobilizing public health
and law enforcement coalitions against the War on Drugs and its deadly culture of mass
punishment.
Impact – overcrowding
Overcrowding causes sickness, as well as cognitive and physical strains on
prisoners
Haney 6 (Craig, Ph.D. in Psychology (and J.D. in Law) from Stanford University, “Harmful Psychological Consequences and
Dysfunctional Correctional Reactions, The Prison Reform: Commission on Safety and Abuse in America's Prisons”, Hein Online)
Although other variables may mediate or reduce the negative∂ effects of crowding,23 the psychological toll of living in a
closed∂ environment that houses too many people can be substantial. Thus,∂ despite an occasional study that
yields an inconclusive finding,24∂ there is little reason to doubt the empirical consensus that crowding∂
significantly worsens the quality of institutional life and increases the∂ destructive potential of
imprisonment. Among other things, we know∂ that prison overcrowding increases negative affect among prisoners.∂ "The present
study indicates that living under relatively crowded∂ housing conditions in a prison produces both negative affect and a∂ lower
criterion of what constitutes overcrowding."25 It also elevates∂ prisoners' blood pressure: "[T]he major hypothesis that there
would∂ be an association between degree of crowding and blood pressure,∂ systolic and diastolic,
was strongly supported.,26 In addition,∂ overcrowding leads to a greater number of prisoner illness∂
complaints. 27∂ Not surprisingly, exposure to "long-term, intense, inescapable∂ crowding" of the sort that now
characterizes many prisons results in∂ high levels of stress that "can lead to physical and psychological∂
impairment.,28 In addition, overcrowding has been associated with higher rates of disciplinary
infractions. For example, one study∂ concluded that in prisons "where crowded conditions are chronic∂ rather than temporary ...
there is a clear association between∂ restrictions on personal space and the occurrence of disciplinary∂ violations.29∂ Among other
things, overcrowding directly affects prisoners'∂ mental and physical health by increasing the level
of uncertainty with∂ which they regularly must cope. One useful psychological model of∂ the negative effects of
overcrowding emphasizes the way in which∂ being confined in a space that is occupied by too many people∂ increases the sheer
number of social interactions persons have that∂ involve "high levels of uncertainty, goal interference, and cognitive∂ load .... ,30
Thus, crowded conditions heighten the level of cognitive∂ strain that prisoners experience by
introducing social complexity,∂ turnover, and interpersonal instability into an already dangerous∂
prison world in which interpersonal mistakes or errors in social∂ judgments can be fatal. Of course,
overcrowding also raises∂ collective frustration levels inside prisons by generally decreasing the∂
resources available to the prisoners confined in them. The amount of∂ things prisoners can
accomplish on a day-to-day basis is∂ compromised by the sheer number of people in between
them and∂ their goals and destinations.
Overcrowding is the norm in our prison systems – It causes violence, sexual
assault, failure to develop meaningful skills, backs up local prisons, and
creates a vicious cycle of imprisonment
Haney 6 (Craig, Ph.D. in Psychology (and J.D. in Law) from Stanford University, “Harmful Psychological Consequences and
Dysfunctional Correctional Reactions, The Prison Reform: Commission on Safety and Abuse in America's Prisons”, Hein Online)
In addition, prisoners in overcrowded correctional systems often∂ are placed on long waiting lists to
obtain prison jobs, and some never∂ get them. By the start of the 1990s the Bureau of Justice Statistics∂ reported that
nearly 40% of the nation's prisoners had no prison work∂ assignments at all, and another 40% were
assigned to "facility∂ support services" that included primarily laundry, kitchen, and∂ building maintenance jobs.37
Only 7% of prisoners were involved in∂ prison industry programs where they were likely to obtain
useful job∂ experience and develop skills that could be transferred to the free world.38 A decade later a
number of large prison systems were still∂ reporting the same or similar levels of idleness. For example, only a∂ little more than half of
all prisoners in California are employed in∂ prison jobs of any kind. Specifically, only 56% of the more than∂ 150,000 California
prisoners were employed in any type of work∂ assignment at the end of 2002."9∂ There is widespread agreement among correctional
experts that∂ chronic idleness in prison produces negative psychological and ∂ behavioral effects. As far back as the 1980s, when trends
toward∂ overcrowding and the lack of prison programming had just begun, the∂ United States Government Accounting Office noted:
"Corrections∂ officials believe that extensive inmate idleness can lead to destructive∂ behavior and increase violence within
institutions. Moreover,∂ idleness does little to prepare inmates for re-entry into society.940∂ Other commentators agreed, noting that
"[1]ess than 20 percent of the∂ national prison population works," and expressing concern that most∂ inmates just "sit
around, becoming bored, restless[,] and, sometimes,∂ violent."'1 They argued that the best way to keep
the costs of∂ incarceration low and the potential for rehabilitation high was to∂ "give inmates a
job."42 But the warning and advice were largely∂ ignored as the trends toward higher rates of
incarceration intensified∂ over the next several decades.∂ Idleness-related frustration increases
the probability of∂ interpersonal conflict and assaults in prison. Overcrowding∂ simultaneously
reduces the opportunities for staff to effectively∂ monitor prisoner behavior and drastically limits
the option to reduce∂ animosities between prisoners by separating them or sending them to∂
different facilities. Thus, overcrowding means that there is less for∂ prisoners to do, fewer outlets
to release the resulting tension, a∂ decreased staff capacity to identify prisoner problems, and
fewer ways to solve them when they do occur. The increased risk of∂ victimization is a likely
result. For example, one prison researcher∂ has noted that "[i]n less well-regulated institutions in which prisoners∂ have little
recourse to protection or in which there may be collusion∂ between dominant prisoners and staff to
maintain the peace, sexual∂ violence tends to be greater."43 Other researchers agreed that∂ overcrowded
conditions in which prisoners have a significant amount ∂ of idle time can contribute to a higher level of prison
rapes.44∂ Prison overcrowding can also reverberate back through the∂ criminal justice system,
creating problems in local jails.45 That is,∂ prison officials may react to overcrowded conditions by
attempting to∂ slow the rate at which they receive new prisoners. In extreme cases,∂ they may refuse to
take them at all. But the jail overcrowding that∂ results as prisoners back up in the system, awaiting transfer to prison,∂ is harmful
in its own right. For example, "large jail populations may∂ create a logarithmically increasing demand for
services, with∂ overcrowding speeding the deterioration of aging jail facilities and∂ further taxing
the ability of institutions to provide for basic human∂ needs."46∂ Unlike prisons, of course, jails are not
structured for long-term∂ confinement. Keeping prisoners in jails for longer periods of time∂ means that they will be even further
deprived of meaningful activity,∂ programming, or needed services. For some prisoners, the∂ consequences are direr still.
Researchers have found that suicides are∂ prevalent in jails with high ratios of inmates to staff
members.47 In∂ addition, the same study found that natural deaths in jail can be reduced when overcrowding
is alleviated and other humane standards∂ of confinement are implemented.4s∂ As prisons filled to capacity and beyond, jail
crowding became the∂ norm. From 1984 to 2000 jails in the United States operated with∂ inmate
populations that were at or above 90% of their overall rated∂ capacity.49 Some facilities are
much more crowded and there is∂ evidence that the problem has not subsided in recent years.50
Jail∂ overcrowding also likely means that increasing numbers of persons∂ will enter the prison
system already traumatized by their prior∂ incarceration.
Overcrowding causes higher levels of crime and recidivism
Haney 6 (Craig, Ph.D. in Psychology (and J.D. in Law) from Stanford University, “Harmful Psychological Consequences and
Dysfunctional Correctional Reactions, The Prison Reform: Commission on Safety and Abuse in America's Prisons”, Hein Online)
Thus, the way officials respond to a structurally caused behavioral∂ problem that they are
powerless to control, by reacting to crowding-∂ related disciplinary infractions through the use
punitive isolation, can∂ jeopardize the long-term well-being of prisoners, create even more∂
disruptive behavior later on, and, indirectly, increase crime.∂ More generally, several studies have suggested that
overcrowding∂ is directly associated with increased recidivism. For example, at the∂ start of the 1980s David
Farrington and his colleagues found a strong∂ relationship between overcrowding and prison ineffectiveness in∂ England.75
Prisoners released from overcrowded prisons were more∂ likely to be recommitted for subsequent
criminal infractions.76 The∂ relationship could not be explained away by other variables, leading∂ Farrington to recommend a
reduction in prison overcrowding in order∂ to improve the ability of prisons to reduce crime.7 By sending fewer∂ people to
prison, or by reducing the effective lengths of prison∂ sentences, he argued, the effectiveness of
imprisonment might be∂ enhanced.78∂ Similarly, several years after Farrington's English study, Canadian∂ researchers
concluded that placing low-risk offenders in often∂ overcrowded high-security facilities resulted in high rates of re- incarceration.79
The rates were significantly higher than those of∂ comparable low-risk offenders who had been placed in halfway∂ houses.80 The
researchers concluded that the failure to properly divert∂ low-risk offenders from high- to low-security
facilities, something∂ that overcrowded prison systems often lack the capacity to do, "may∂
actually increase the risk of future recidivism."81∂ Another example is provided by what one commentator has∂
described the "vicious cycle" into which mentally ill prisoners can∂ fall. 82 A lack of appropriate
treatment and care of the sort that occurs∂ more often in overburdened and overcrowded prison
systems may∂ worsen prisoners' mental stability "[c]ausing hostile and aggressive∂ behavior to
the point that they break prison rules and end up in∂ segregation units as management
problems.,83 Because of highly∂ stressful conditions in segregation and the fact that mental health care∂ there is usually of very
uneven quality "this regression can go∂ undetected for considerable periods of time before they again receive∂ more closely monitored
mental health case.",84 Unfortunately, this is a∂ cycle that "can, and often does, repeat.,85∂ Indeed, psychiatrist
Terry Kupers has argued that an unusually∂ high number of mentally ill persons in prison are funneled into long-∂ term segregation,
"lockup," or "supermax" where they are confined∂ to their cells for as many as twenty-three hours a day.86 My own∂ research and a
number of other studies indicate that a high percentage∂ of the prisoners who are confined in these special
disciplinary units∂ suffer from serious forms of mental illness.87 A Canadian study∂ estimated that
approximately 29% of prisoners in special handling∂ and long-term segregation units suffered from "severe mental disorders.'' 8 A
more recent study conducted by a group of∂ Washington state researchers found exactly the same thing: 29% of∂ intensive
management prisoners in the state's correctional system∂ manifested at least one pre-defined indication of serious mental∂ disorder
(such as multiple admissions to an acute care mental care∂ facility, or having been in one of the prison system's residential∂ mental
health units).89
Impact – children/families
Incarceration has detrimental impacts on the lives of children – causes a
feedback loop
Nauman 13 - J.D. University of Florida Levin College of Law; B.A. 2008, University of Florida
Steven Nauman, 5/1/2013, “Brown v. Plata: Renewing the Call to End Mandatory Minimum Sentencing”,
http://dl2af5jf3e.search.serialssolutions.com/?ctx_ver=Z39.88-2004&ctx_enc=info%3Aofi%2Fenc%3AUTF8&rfr_id=info:sid/summon.serialssolutions.com&rft_val_fmt=info:ofi/fmt:kev:mtx:journal&rft.genre=article&rft.atitle=Brown+v.+Pl
ata%3A+renewing+the+call+to+end+mandatory+minimum+sentencing&rft.jtitle=Florida+Law+Review&rft.au=Nauman%2C+Steve
n&rft.date=2013-05-01&rft.pub=University+of+Florida&rft.issn=10454241&rft.volume=65&rft.issue=3&rft.spage=855&rft.externalDBID=BSHEE&rft.externalDocID=354876378, 7/6/2015, BD
Incarceration has similarly dire implications for children and∂ families. In 2010, 52.2% of all
inmates reported having minor∂ children. 4 0 Approximately 58% of children with at least one
parent in∂ prison or jail are under the age of ten.141 According to the Urban∂ Institute Justice Policy Center,
"[1]osing a parent to prison affects∂ multiple aspects of children's lives and affects them to
varying∂ degrees."' 42 In fact, in 2003 the Institute issued a report indicating the∂ numerous developmental impacts that result
when a child loses a parent∂ to incarceration. In significant part, the report found that younger∂ children (ten years
or younger) endured abnormal stress, exhibited low∂ self-esteem, and could not bond properly to
family and peers.143 Perhaps∂ more troubling, however, was the finding that older children (those∂ between the
ages of eleven and eighteen) exhibited abnormal behavior,∂ rejected social norms, and were far
more likely to engage in criminal∂ activities, again perpetuating a criminal society. Continuing to∂
incarcerate at such a high rate will only continue to fragment our∂ families and ensure that a cycle of crime will exist in our culture.
At∂ some point, the social and economic consequences of incarceration∂ prove unbearable.
Impact – income inequality
Incarceration leads to income inequality
Western and Pettit, Professor of Sociology and criminal justice at Harvard and Professor of Sociology at the University of
Texas-Austin, Summer 2010
(Bruce and Becky, “Incarceration & social inequality” pg 1, https://www.amacad.org/content/publications/pubContent.aspx?d=808)
Cumulative Inequality. Serving time in prison or jail diminishes social and economic opportunities. As we
have seen, these
diminished opportunities are found among those already most socioeconomically
disadvantaged. A burgeoning research literature examining the economic effects of incarceration finds
that incarceration is associated with reduced earnings and employment.4 We analyzed panel data from the
National Longitudinal Survey of Youth (NLSY), one of the few surveys that follows respondents over a long period of time and that
interviews incarcerated respondents in prison. The NLSY began in 1979, when its panel of respondents was aged fourteen to twentyone; it completed its latest round of interviews in 2006. Matching our population estimates of incarceration, one in five African
American male respondents in the NLSY has been interviewed at some point between 1979 and 2006 while incarcerated, compared to
Analysis of the NLSY showed that serving time
in prison was associated with a 40 percent reduction in earnings and with reduced
job tenure, reduced hourly wages, and higher unemployment. The negative effects of
5 percent of whites and 12 percent of Latino respondents.
incarceration, even among men with very poor economic opportunities to begin with, are related
to the strong negative perceptions employers have of job seekers with criminal records. Devah
Pager’s experimental research has studied these employer perceptions by sending pairs of fake job seekers to apply for real jobs.5In
each pair, one of the job applicants was randomly assigned a résumé indicating a criminal record (a parole officer is listed as a
reference), and the “criminal” applicant was instructed to check the box on the job application indicating he had a criminal record. A
criminal record was found to reduce callbacks from prospective employers by around 50 percent,
an effect that was larger for African Americans than for whites. Incarceration may reduce economic
opportunities in several ways. The conditions of imprisonment may promote habits and behaviors that are
poorly suited to the routines of regular work. Time in prison means time out of the labor force,
depleting the work experience of the incarcerated compared to their nonincarcerated counterparts.
The stigma of a criminal conviction may also repel employers who prefer job applicants with
clean records. Pager’s audit study offers clear evidence for the negative effects of criminal stigma. Employers,
fearing legal liability or even just unreliability, are extremely reluctant to hire
workers with criminal convictions . A simple picture of the poor economic opportunities of
the formerly incarcerated is given by the earnings mobility of men going to prison compared to
other disadvantaged groups. The NLSY data can be used to study earnings mobility over several decades. We calculated the
chances that a poor man in the lowest fifth of the earnings distribution in 1986 would move up and out of the lowest fifth by 2006.
Among low-income men who are not incarcerated, nearly two-thirds are upwardly mobile by
2006 (Figure 3). Another group in the NLSY has very low levels of cognitive ability, scoring in the bottom quintile of the Armed
Forces Qualifying Test, the standardized test used for military service. Among low-income men with low scores on the test, only 41
percent are upwardly mobile. Upward mobility is even less common among low-income high school dropouts. Still, we observe the
least mobility of all among men who were incarcerated at some point between 1986 and 2006.
For these men, only one in four rises out of the bottom quintile of the earnings distribution.
Incarceration leads to income inequality, specifically for the African
American population
Cox, assistant professor in the economics department at Spelman College and Ph.D in economics, 16 January 2015
(Robynn J.A., Where Do We Go from Here? Mass Incarceration and the Struggle for Civil Rights, pg 19,
http://www.epi.org/publication/where-do-we-go-from-here-mass-incarceration-and-the-struggle-for-civil-rights/)
More recent research finds that there are strong effects of incarceration on employment and
earnings (e.g., see Raphael and Stoll 2013, Pager 2003; Pager, Western, and Suggie 2009; Raphael 2014; and Pager, Western, and
Bonikowski2009), the burden of which is disproportionately felt in the black community, since African
Americans are excessively incarcerated. Incarceration diminishes employment and earnings
prospects, especially for young black men (Holzer 2009; Pager, Western, and Suggie 2009; Pager, 2003; Pager,
Western, and Bonikowski 2009). Due
to large numbers of black men incarcerated, it has also been found
that black-white employment and earnings disparities have been underestimated (Western and Pettit
2000; Chandra, 2003). In particular, there is evidence that arrests may explain almost two-thirds of the blackwhite gap in employment for young men (Grogger 1992) and that incarceration explained onethird of
this differential in 2000 (Raphael 2006). Moreover, new research suggests that the higher relative arrest
rates of blacks compared to whites might limit black upward mobility, and lead to inferior
occupational placements (e.g., preclude blacks from consideration for managerial positions, in
which being absent—due to an arrest—is more costly to employers (Bailey 2014). After accounting for
black-white wage differentials actually diverged
between 1980 and 1990, and that incarceration can account for almost 50 percent of
this divergence. Western and Pettit (2005) also find that from 1980 to 1999, the black-white wage differential increased
selection bias, Chandra (2003) estimates that
among working-age men after accounting for incarceration-induced selection bias. Moreover, using audit studies, Pager (2003) and
Pager, Western, and Bonikowski (2009), find that employment opportunities for minorities are hurt more by an
incarceration. However, incarceration does not affect everyone in the same way: Low-skilled
white males recently released from prison receive just as many, if not more call backs than blacks
and Hispanics without a criminal record (Pager, Western, and Bonikowski 2009). It is interesting to note
that, although low-skilled white male employment is hurt by an incarceration,
previously incarcerated white men are still ranked in the economic hierarchy at the
same level as low-skilled Hispanic and black men without criminal records.
Incarceration impacts wage mobility
Western, 02-(Bruce Western is Professor of Sociology at Princeton University. He has research interests in the political and
economic sociology of labor markets and statistical methods.) “The Impact of Wage Mobility and Inequality” American Sociological
Review, Vol. 67, No. 4 (Aug., 2002), pp. 527-529, JSTOR, print//droneofark
Previous research on incarceration neglects the tendency of earnings to grow over the life course.
Longitudinal studies of careers find that internal labor markets in large firms, public sector pay schedules, on-thejob training, and
union seniority provisions all contribute to job continuity and earnings growth among young men (DiPrete 1989; Spilerman 1977; also
see the review by Rosenfeld 1992:45-50). If ex-convicts ultimately recover their pre-incarceration wage
level, the life course perspective suggests they may still be worse off because wages would have
grown even higher without incarceration. While life course research on occupations ties earnings
growth to employment in career jobs, a life course perspective on crime treats incarceration as a
turning point that disrupts key transitions, restricting access to such jobs (Sampson and Laub 1993). If
imprisonment redirects the usual employment trajectory, the main effect of incarceration will be supplemented by
an interaction effect in which wages grow more slowly with age for ex-convicts. Three mechanisms
explain why prison or jail time is linked to slow wage growth. Incarceration is stigmatizing, and it erodes human
and social capital. The negative relationship between crime and earnings is usually attributed to
the stigma of criminal conviction. A criminal record signals to employers that a potential
employee might be untrustworthy. Thus, employers are less likely to hire ex-offenders than
comparable job applicants without criminal records (Holzer 1996:59; Schwartz and Skolnick 1962). The
stigma of conviction is especially prohibitive of entry into high-status or career jobs. Men in trusted
or high-income occupations before conviction experience especially large earnings losses after
release from prison (Lott 1990; Waldfogel 1994a). Similar observations are reported for white-collar offenders (Kling 1999).
The stigma of conviction also has legal consequences that mostly affect career jobs. A felony record can temporarily
disqualify an individual from employment in licensed or professional occupations, skilled trades,
or in the public sector (Office of the Pardon Attorney 1996). The stigma of conviction thus reduces exconvicts' access to jobs
characterized by trust and continuity of employment. Incarceration also erodes job skills. Time out of
employment prevents the acquisition of skills gained through work experience. As a result, for
some categories of federal prison inmates, earnings decrease as sentence length increases (Kling
1999). Besides limiting work experience, incarceration may exacerbate pre-existing mental or
physical illnesses. Furthermore, behaviors that are adaptive for survival in prison are likely to be
inconsistent with work routines on the outside (Irwin and Austin 1997:121). For these reasons, ex-inmates are likely
to be less productive than are similar workers who have not served time in prison or jail. The effects of incarceration on
skills also has implications for wage mobility: Most employers will be unwilling to invest in the
firm specific skills of workers with criminal records, and thus ex-offenders are relegated to spot
markets with little prospect for earnings growth (Nagin and Waldfogel 1998). Finally, the social contacts
that provide information about job opportunities may be eroded by incarceration. Hagan (1993) argues
that juvenile delinquency weakens social connections to stable employment opportunities. If prisons are criminogenic, adult
incarceration may have a similar negative effect on job referral networks. Sdnchez-Jankowski (1991:272-76) finds ethnographic
evidence for this effect, reporting that incarceration can deepen ex-inmates attachments to gangs (Venkatesh 2000:133). The
disruptive impact of imprisonment on social capital is also found in family relationships where
ex-inmates share a low likelihood of marriage or cohabitation (see the review by Hagan and Dinovitzer
1999:131- 40). Entry to trades and public sector employment also depends strongly on referral
networks (Granovetter 1995:173-74). To the extent that incarceration undermines social networks, ex-inmates will have limited
access to apprenticeships and careers in crafts and the public sector. Although most research focuses on the average earnings loss
associated with incarceration, a few studies observe that the penal system channels ex-inmates into unsteady jobs with little wage
growth. Thus Sampson and Laub (1993:153-68) found that time served in prison by youths aged 17 to 25 was negatively related to
continuity of employment and work commitment at ages 25 to 32. Urban ethnographers similarly report that the prison system
provides a pathway to secondary labor markets and informal economies (Duneier 1999; SanchezJankowski 1991:281; Sullivan 1989;
Hagan 1993). For Sullivan's (1989) subjects in a New York City neighborhood, ... participation in income-producing crime and the
resulting involvement in the criminal justice system in turn kept them out of school and forced them to abandon their occupational
goals.... By the end of their teens most of these youths had found and lost several jobs.... Wages, though irregular, replaced theft as
their major source of income.... They were still frequently unemployed and generally made low wages when they did work. (Pp. 64,
72) Evans's (1968) sample of parolees had a similar experience: Obtaining employment was not a real problem; instead it was the
character and quality of the jobs that was the problem. (P. 208) In short, although ex-inmates regularly find
employment, their jobs often provide little secure wage growth. Theories linking incarceration to wages have
two main empirical implications. First, incarceration has a main effect, reducing the level of earnings. And
second, ex-inmates experience slower wage growth than men without prison records. Because they
are seldom hired in primary sector jobs with strongly age-graded pay scales, ex-inmates follow
the low-wage trajectories common among day laborers and other kinds of "flexible" or contingent
workers. Other researchers similarly argue that career jobs are inaccesible to ex-offenders, and this is reflected in large earnings
penalties for those arrested or convicted relatively late in life (Bushway 1996; Nagin and Waldfogel 1998; cf. Kling 1999). However,
incarceration is not observed in this earlier research, and the NLSY data used here are more extensive than those analyzed earlier.
Imprisonment makes the wage gap even larger.
Western, 02-(Bruce Western is Professor of Sociology at Princeton University. He has research interests in the political and
economic sociology of labor markets and statistical methods.) “The Impact of Wage Mobility and Inequality” American Sociological
Review, Vol. 67, No. 4 (Aug., 2002), pp. 529, JSTOR, print//droneofark
The penal system's production of large numbers of marginal workers suggests a provocative account of the increase in men's wage
inequality in the 1980s and 1990s. During these decades, increasing inequality was produced by the emergence of a flat wage
trajectory among men with little education (Bernhardt et al. 2001). Evidence of racial and ethnic division is given
by the growing employment share of black and Hispanic workers in low-paying, low-quality jobs
(Wright and Dwyer 2000). In light of these trends, the prison boom may have increased inequality by supplying
the labor market with low-skill minority ex-inmates who remain mired at the bottom of the wage
distribution. The collective effect of the penal system is captured by Garland's (2001:2) term "mass
imprisonment." In his formulation, the incarceration rate is so high for some groups that its
influence is felt not just by individuals, but by broad demographic groups. A few researchers have
connected the polarization of the American labor market to mass imprisonment. In an early statement of the broad influence of the
criminal justice system, Freeman (1991) observes that "the magnitudes of incarceration, probation, and
parole among black drop outs, in particular, suggest that crime has become an intrinsic part of the
youth unemployment and poverty problem, rather than deviant behavior on the margin" (p. 1).
Wacquant (2000) argues that the prison, alongside the ghetto, has become a system of forced confinement that
marginalizes minority communities from mainstream economic life. Along similar lines, the U.S. penal
system in the 1980s and 1990s has been described as a state intervention in the labor market that increased race and class inequalities
in earnings and employment (Western and Beckett 1999; Western and Pettit 2000). Despite claims for the effects of mass
imprisonment, there are few estimates of the effects of incarceration on aggregate labor market outcomes. The disruption of
careers by incarceration, however, has clear implications for patterns of wage inequality. If the
prison boom is producing a generation of men stuck in low-wage jobs in the secondary labor
market, mass imprisonment has likely increased economic inequality by reducing the wages of
low-skill and minority men.
Incarceration crates economic racial inequaliry
Western, 02-(Bruce Western is Professor of Sociology at Princeton University. He has research interests in the political and
economic sociology of labor markets and statistical methods.) “The Impact of Wage Mobility and Inequality” American Sociological
Review, Vol. 67, No. 4 (Aug., 2002), pp. 541, JSTOR, print//droneofark
This analysis has reported evidence for the hypothesis that incarceration is a turning point that reduces the earnings mobility of young
men. The analysis also considered whether the individual-level effects of incarceration on earnings summed to a large aggregate effect
on wage inequality. Analysis of the NLSY provided mixed support for these claims. There is strong evidence that
incarceration reduces the wages of ex-inmates by 10 to 20 percent. More relevant for the idea of
imprisonment as a turning point, incarceration was also found to reduce the rate of wage growth by about
30 percent. Indeed, ex-inmates experienced marked declines in real wages as they moved through the life course in the 1980s and
1990s. Much of this decline, however, resulted from an increasing penalty for low education, widely experienced by men without a
college education. The aggregate effects of incarceration on wage inequality were relatively small.
Differential incarceration accounts for almost 10 percent of the mean difference in wages across
race and ethnic groups. In sum, the analysis provides strong evidence for slow wage growth
among ex-inmates. The effects of incarceration on aggregate wage inequality are more modest.
Although the effects of incarceration on wage inequality were relatively small, the true effect in
the population may be larger. Because of the way incarceration is measured in the NLSY, the proportion of men with
prison records is somewhat underestimated and the underestimate is larger for blacks than for whites. If the NLSY accurately captured
the true prevalence of imprisonment in the population, estimated black-white inequality due to incarceration would be higher. In
addition, with very high incarceration rates among some groups like low-education black men, the
stigma of imprisonment may attach to the group as a whole rather than to individuals. This effect
would be reflected in the overall wage disadvantage of black noncollege men, rather than the
estimated effect of incarceration. Relatively small incarceration effects for blacks hint at this process, in which the labor
market does not differentiate so strongly between black noninmates and ex-inmates. Further analysis would examine how blackwhite
wage differentials among noncollege men have changed over time as the incarceration rate has increased. The findings here can also
be placed in the wider context of research on crime and inequality. Research relating crime to labor market outcomes views stable
employment as an important source of criminal desistance (Crutchfield and Pitchford 1997; Sampson and Laub 1993). These effects
appear strongest for men in their late twenties and thirties (Uggen 2000). The low wages earned by exinmates may
thus be associated with further crime after release from prison. The causal path from incarceration
to irregular employment to crime may be especially damaging because the economic pain of
incarceration is largest for older men-precisely the group that benefits most from stable
employment. This analysis also supports the claim by Sampson and Laub (1993) that incarceration adds to an
accumulation of disadvantage. Although Sampson and Laub (1993) focus on the long-term effects of juvenile
incarceration, the evidence presented here indicates that adult incarceration can further limit economic mobility in later life. The
effects of incarceration on economic mobility challenge our general understanding of the
influence of institutions on economic opportunity. Research on American racial inequality views
institutional change as a progressive influence, but the evidence here indicates that penal
expansion has deepened racial inequality. Many researchers attribute improvements in black earnings and employment
to school desegregation, affirmative action, and equal employment policies (Card and Krueger 1992; Heckman 1989). The growth of
the black middle class is rooted in many of these policies (Wilson 1978). However, expanding imprisonment has
increased racial inequality in earnings and in lifelong careers. Although racial differences in
incarceration may not result in a straightforward way from racial bias in policing or the courts
(Tonry 1996), the penal system has influenced the relative distribution of life chances among young
poorly educated black men over the last two decades of the twentieth century. More generally, the penal
system has never occupied a central place in the study of American inequality and has been relegated instead to a specialty interest
among criminologists. Low incarceration rates throughout most of the twentieth century placed prisons
at the distant fringes of the stratification system, far behind the institutional influence of families,
schools, labor unions, and the military. By the 1990s, around one-fifth of minority men and a
comparable proportion of those with only a high school education will pass through prison at
some point in their lives. Under these conditions, it appears that the U.S. penal system has grown
beyond disciplining the deviant few, to imposing a systemic influence on broad patterns of social
inequality.
Impact calculus – deontology
View the impact debate from the lens of the dispossessed---conventional
moral theory operates on a false assumption of equal opportunity---justice
precedes their theories
Mills 97 – Associate Prof of Philosophy @ U Illinois, Chicago
(Charles, “The Racial Contract,” p. 109)
The Racial Contract has always been recognized by nonwhites as the real determinant of (most) white moral/political practice and thus
as the real moral/political agreement to be challenged. If the epistemology of the signatories, the agents, of the Racial
Contract requires
evasion and denial of the realities of race, the epistemology of the victims, the
objects, of the Racial Contract is, unsurprisingly, focused on these realities themselves. (So there is a reciprocal
relationship, the Racial Contract tracking white moral/political consciousness, the reaction to the Racial Contract tracking nonwhite
moral/political consciousness and stimulating a puzzled investigation of that white moral/political consciousness.) The term
"standpoint theory" is now routinely used to signify the notion that in understanding the workings of a system of
oppression, a perspective from the bottom up is more likely to be accurate than one from the top
down. What is involved here, then, is a "racial" version of standpoint theory, a perspectival cognitive advantage that is grounded
in the phenomenological experience of the disjuncture between official (white) reality and actual
(nonwhite) experience, the "double-consciousness" of which W. E. B. Du Bois spoke.48 This differential racial experience
generates an alternative moral and political perception of social reality which is encapsulated in the
insight from the black American folk tradition I have used as the epigraph of this book : the central realization, summing up the Racial
Contract, that "when white people say Justice,' they mean 'Just Us."' Nonwhites have always (at least in first encounters) been
bemused or astonished by the invisibility of the Racial Contract to whites, the fact that whites have routinely talked in universalist
terms even when it has been quite clear that the scope has really been limited to themselves. Correspondingly, nonwhites, with
no vested material or psychic interest in the Racial Contract-objects rather than subjects of it, viewing
it from outside rather than inside , subpersons rather than persons-are (at least before ideological conditioning)
able to see its terms quite clearly. Thus the hypocrisy of the racial polity is most transparent to its victims. The corollary is
that nonwhite interest in white moral and political theory has necessarily been focused less on the details of the
particular competing moral and political candidates (utilitarianism versus deontology versus natural rights
than in the unacknowledged Racial Contract
that has usually framed their functioning. The variable that makes the most difference to the fate of nonwhites is
theory; liberalism versus conservatism versus socialism)
not the fine- or even coarse-grained conceptual divergences of the different theories themselves (all have their Herrenvolk variants),
but whether or not the subclause invoking the Racial Contract, thus putting the theory into Herrenvolk mode, has been activated. The
details of the moral theories thus become less important than the metatheory , the Racial
Contract, in which they are embedded. The crucial question is whether nonwhites are counted as
full persons, part of the population covered by
the moral operator, or not.
Impact calculus – war
Racism reduces minorities to killable, disposable material – basis for warfare
and escalation
Maldonado-Toress 8 - associate professor of comparative literature at Rutgers
(Nelson Maldonado-Torres, “Against War: Views from the Underside of Modernity,” p. 217-221)
Dussel, Quijano, and Wynter lead us to the understanding that what happened in the Americas
was a
transformation and naturalization of the non-ethics of war —which represented a sort of exception to the
ethics that regulate normal conduct in Christian countries—into a more stable and long-standing reality of
damnation , and that this epistemic and material shift occurred in the colony. Damnation, life
in hell, is colonialism : a reality characterized by the naturalization of war by means of the
naturalization of slavery, now justified in relation to the very constitution of people and no longer solely or principally to
their faith or belief. That human beings become slaves when they are vanquished in a war translates in
the Americas into the suspicion that the conquered people, and then non-European peoples in
general, are constitutively inferior and that therefore they should assume a position of
slavery and serfdom . Later on, this idea would be solidified with respect to the slavery of African peoples, achieving
stability up to the present with the tragic reality of different forms of racism. Through this process, what looked like a "state of
exception" in the colonies became the rule in the modern world. However, deviating from Giorgio Agarnben's diagnosis, one must say
that the colony--long before the concentration camp and the Nazi politics of extermination--served
as the testing ground for the limits and possibilities of modernity, thereby revealing its darkest
secrets." It is race, the coloniality of power, and its concomitant Eurocentrism (and not only national
socialisms or forms of fascism) that allow the "state of exception" to continue to define ordinary relations
in this, our so-called postmodern world. Race emerges within a permanent state of exception where
forms of behavior that are legitimate in war become a natural part of the ordinary way of life. In
that world, an otherwise extraordinary affair becomes the norm and living in it requires extraordinary effort." In the racial/
colonial world, the " hell" of war becomes a condition that defines the reality of racialized
selves, which Fanon referred to as the damnes de la terre (condemned of the earth). The damne (condemned) is a
subject who exists in a permanent "hell ," and as such, this figure serves as the main referent or liminal other
that guarantees the continued affirmation of modernity as a paradigm of war. The hell of the
condemned is not defined by the alienation of colonized productive forces, but rather signals the
dispensability of racialized subjects, that is, the idea that the world would be fundamentally better
without them. The racialized subject is ultimately a dispensable source of value, and exploitation is conceived in this context as
due torture, and not solely as the extraction of surplus value. Moreover, it is this very same conception that gives rise to the particular
erotic dynamics that characterize the relation between the master and its slaves or racialized workers. The condemned, in
short, inhabit a context in which the confrontation with death and murder is ordinary . Their
"hell" is not simply "other people," as Sartre would have put it-at least at one point - but rather racist
perceptions that are responsible for the suspension of ethical behavior toward peoples at the
bottom of the color line. Through racial conceptions that became central to the modern self,
modernity and coloniality produced a permanent state of war that racialized and colonized
subjects cannot evade or escape. The modern function of race and the coloniality of power, I
am suggesting here, can be understood as a radicalization and naturalization of the non-ethics of war in
colonialism." This non-ethics included the practices of eliminating and enslaving certain subjectsfor example, indigenous and black-as part of the enterprise of colonization. From here one could as well refer to them
as the death ethics of war . War, however, is not only about killing or enslaving; it also includes
a particular treatment of sexuality and femininity: rape . Coloniality is an order of things that places
people of color within the murderous and rapist view of a vigilant ego, and the primary targets of this
rape are women. But men of color are also seen through these lenses and feminized, to become
fundamentally penetrable subjects for the ego conquiro. Racial- ization functions through gender and
sex, and the ego conquiro is thereby constitutively a phallic ego as well." Dussel. who presents this thesis of the phallic character of
the ego cogito, also makes links, albeit indirectly, with the reality of war. ¶ And thus, in the beginning of modernity, before Descartes
discovered ... a terrifying anthropological dualism in Europe, the Spanish conquistadors arrived in America. The phallic conception of
the European-medieval world is now added to the forms of submission of the vanquished Indians. "Males," Bartolome de las Casas
writes, are reduced through "the hardest, most horrible, and harshest serfdom"; but this only occurs with those who have remained
alive, because many of them have died; however, "in war typically they only leave alive young men (mozos) and women.""5 The
indigenous people who survive the massacre or are left alive have to contend with a world that considers them to be dispensable. And
since their bodies have been conceived of as inherently inferior or violent, they must be constantly subdued or civilized, which
requires renewed acts of conquest and colonization. The survivors continue to live in a world defined by war, and this situation is
peculiar in the case of women. AsT. Denean Sharpley-Whiting and Renee T, White put it in the preface to their anthology Spoils oJ
War: Women oJ Color, Cultures, and Revolutions: A sexist and/or racist patriarchal culture and order posts and attempts to maintain,
through violent acts of force if necessary, the subjugation and inferiority of women of color. As Joy James notes, "its explicit, general
premise constructs a conceptual framework of male [and/or white] as normative in order to enforce a politicaljracial, economic,
cultural. sexual] and intellectual mandate of male [and/or white] as superior." The warfront has always been a "feminized" and
"colored" space for women of color. Their experiences and perceptions of war, conA ict, resistance, and struggle emerge from their
specific racial-ethnic and gendered locations ... Inter arma silent leges: in time of war the law is silent," Walzer notes. Thus, this
volume operates from the premise that war has been and is presently in our midst.” The links between war, conquest,
and the exploitation of women's bodies are hardly accidental. In his study of war and gender, Joshua Goldstein
argues that conquest usually proceeds through an extension of the rape and exploitation of women in wartime." He argues that to
understand conquest, one needs to examine: I) male sexuality as a cause of aggression; 2) the feminization of enemies as symbolic
domination; and 3) dependence on the exploitation of women's labor-including reproduction." My argument is, first, that these three
elements came together in a powerful way in the idea of race that began to emerge in the conquest
and colonization of the Americas. My second point is that through the idea of race, these elements
exceed the activity of conquest and come to define what from that point on passes as the idea of a
"normal" world. As a result, the phenomenology of a racial context resembles, if it is not
fundamentally identical to, the phenomenology of war and conquest . Racism posits its targets
as racialized and sexualized subjects that, once vanquished, are said to be inherently servile and
whose bodies come to form part of an economy of sexual abuse, exploitation, and control. The
coloniality of power cannot be fully understood without reference to the transformation and naturalization of war
and conquest in modern times. Hellish existence in the colonial world carries with it both the
racial and the gendered aspects of the naturalization of the non-ethics of war. " Killability " and
" rapeability " are inscribed into the images of colonial bodies and deeply mark their ordinary
existence. Lacking real authority, colonized men are permanently feminized and simultaneously represent a constant threat for
whom any amount of authority, any visible trace of the phallus is multiplied in a symbolic hysteria that knows no lirnits.?" Mythical
depiction of the black man's penis is a case in point: the black man is depicted as an aggressive sexual beast who desires to rape
women, particularly white women. The black woman, in turn, is seen as always already sexually available to the rapist gaze of the
white, and as fundamentally promiscuous. In short, the black woman is seen as a highly erotic being whose primary function is
fulfilling sexual desire and reproduction. To be sure, any amount of "penis" in either one represents a threat, but in his most familiar
and typical forms the black man represents the act of rape- "raping" -while the black woman is seen as the most legitimate victim of
rape- "being raped." In an antiblack world black women appear as subjects who deserve to be raped and to suffer the consequences-in
terms of a lack of protection from the legal system, sexual abuse, and lack of financial assistance to sustain themselves and their
families-just as black men deserve to be penalized for raping, even without having committed the act. Both "raping" and "being raped"
are attached to blackness as if they form part of the essence of black folk, who are seen as a dispensable population. Black bodies
are seen as excessively violent and erotic, as well as being the legitimate recipients of excessive
violence, erotic and otherwise." "Killability" and "rapeability" are part of their essence, understood in
a phenomenological way. The "essence" of blackness in a colonial anti-black world is part of a larger
context of meaning in which the death ethics of war gradually becomes a constitutive part
of an allegedly normal world. In its modern racial and colonial connotations and uses, blackness is the invention and the
projection of a social body oriented by the death ethics of war." This murderous and raping social body projects the features that
define it onto sub-Others in order to be able to legitimate the same behavior that is allegedly descriptive of them. The same ideas
that inspire perverted acts in war--particularly slavery, murder, and rape--are legitimized in
modernity through the idea of race and gradually come to be seen as more or less normal thanks
to the alleged obviousness and non-problematic character of black slavery and anti-black racism.
To be sure, those who suffer the consequences of such a system are primarily blacks and indigenous peoples, but it also deeply
affects all of those who appear as colored or close to darkness. In short, this system of symbolic
representations, the material conditions that in part produce and continue to legitimate it, and the
existential dynamics that occur therein (which are also at the same time derivative and constitutive of such a context)
are part of a process that naturalizes the non-ethics or death ethics of war . Subontological difference is the result of such naturalization and is legitimized through the idea of
race. In such a world, ontology collapses into a Manicheanism, as Fanon suggested." ¶
And, racism is the root cause of war and ensures extinction
Mendieta 2
(Eduardo, SUNY @ Stony Brook, Meeting of the Foucault Circle from To make live and to let die – Foucault on Racism, April 25)
This is where racism intervenes, not from without, exogenously, but from within, constitutively. For the emergence of
biopower as the form of a new form of political rationality, entails the inscription within the very logic of the
modern state the logic of racism. For racism grants, and here I am quoting: "the conditions for the
acceptability of putting to death in a society of normalization. Where there is a society of normalization, where there is a
power that is, in all of its surface and in first instance, and first line, a bio-power, racism is indispensable as a condition to be able to
put to death someone, in order to be able to put to death others. The homicidal [meurtrière] function of the state, to the
degree that the state functions on the modality of bio-power, can only be assured by racism "(Foucault 1997, 227) To use
the formulations from his 1982 lecture "The Political Technology of Individuals" –which incidentally, echo his 1979 Tanner Lectures
–the power of the state after the 18th century, a power which is enacted through the police, and is enacted over the population, is a
power over living beings, and as such it is a biopolitics. And, to quote more directly, "since the population is nothing
more than what the state takes care of for its own sake, of course, the state is entitled to slaughter it, if
necessary. So the reverse of biopolitics is thanatopolitics." (Foucault 2000, 416). Racism, is the thanatopolitics of the
biopolitics of the total state. They are two sides of one same political technology, one same political rationality: the management
of life, the life of a population, the tending to the continuum of life of a people. And with the inscription of racism
within the state of biopower, the long history of war that Foucault has been telling in these dazzling lectures has
made a new turn: the war of peoples, a war against invaders, imperials colonizers, which turned into a war of
races, to then turn into a war of classes, has now turned into the war of a race, a biological unit, against its
polluters and threats. Racism is the means by which bourgeois political power, biopower, re-kindles the
fires of war within civil society. Racism normalizes and medicalizes war. Racism makes war the
permanent condition of society, while at the same time masking its weapons of death and torture. As I
wrote somewhere else, racism banalizes genocide by making quotidian the lynching of suspect threats
to the health of the social body. Racism makes the killing of the other, of others, an everyday occurrence by internalizing
and normalizing the war of society against its enemies. To protect society entails we be ready to kill its threats,
its foes, and if we understand society as a unity of life, as a continuum of the living, then these threat and
foes are biological in nature.
Impact calculus – extinction inevitable
Extinction is inevitable anyway absent a change in broader structures – the
only thing that can stop planetary destruction is justice – any world without it
isn’t even worth saving
Williams 11
[2011, Paul Williams Senior Lecturer at the University of Exeter, Race, Ethnicity and Nuclear War: Representations of Nuclear
Weapons and Post-Apocalyptic Worlds, Pg. 168]
At the aforementioned 1982 ’Anti-Nuke Rally’, Alice Walker
offered a personal dilemma she faced in relation
to her involvement with antinuclear activism. Walker began her address by articulating her
reluctance to endorse antinuclear politics. Walker's ’problem’ with supporting nuclear
disarmament is the ’hope for revenge' that she believed to be ‘at the heart of People of Color's
resistance to any anti-nuclear movement'. She suggests that the idea of nuclear apocalypse as a just
consequence of white racial chauvinism might seduce the peoples of the African diaspora into
renouncing opposition to nuclear weapons . Considering ‘the enormity of the white man’s
crimes against humanity’, including contemporary racist discourse arguing 'Blacks are genetically
inferior and should be sterilized', Walker wonders whether extinction alone will stop the white
man's destructive course: 'Let the bombs cover the ground like rain. For nothing short
of total destruction will ever teach them anything .’ Would extinction now not be
preferable to a future of exponential white domination ? ‘[ It] would be good,
perhaps, to put an end to the species in any case, rather than let white men continue
to subjugate it’. The white men's rapacious course has designs on the universe and Walker
believes ‘Fatally irradiating ourselves to save others from what Earth has already
become' requires our serious thought’ .°' This opening rhetoric is clearly intended to shock
her audience in order to impress upon them how deeply felt Walker’s indignation at white
supremacism is. Her speech concludes with renewed support for the antinuclear cause . Walker
seeks to retain the anger at racial injustice that fuelled her entertainment of the
desirability of nuclear extinction, allying that emotion to hope for change in the
future . As her home, Walker pledges to protect the Earth, and she affirms the desirability of life.
Linking nuclear genocide with racial oppression, the Earth will only be spared and
humankind saved on the precondition of justice for ‘every living thing'. "2 Extinction
can only be averted if humankind manages to think outside of modernity‘s division
of peoples into hierarchies of race.
ANSWERS TO
AT T – 2ac
Surveillance is defined as monitoring and constraining mobility---that
includes confinement to institutionalized and fortified spaces
Torpey 7 - Professor of Sociology and History at the Graduate Center, City University of New York
(John, “Through Thick and Thin: Surveillance after 9/11,” Contemporary Sociology, 36.2, p. 116)//BB
What is “surveillance”? The term evokes∂ suspicion and opprobrium because it suggests∂ a violation of our autonomy,
our freedom∂ to move about and to do as we wish,∂ and this indeed it does—in the putative interests∂ of public order, commercial
transparency,∂ and personal security. Students of∂ surveillance often make a distinction between∂ visible and
invisible forms—the possibility∂ that my keystrokes are being recorded∂ as I write this, for example, as opposed to the∂ readily
identifiable security cameras that have∂ become increasingly ubiquitous features of∂ everyday life, at least in the richer parts of the∂
world∂ One might, however, make a further distinction∂ between “thin” and “thick” forms of∂
surveillance. Thin surveillance monitors our∂ movements, our business transactions, and∂ our interactions
with government, but generally∂ without constraining our mobility per se.∂ Thick surveillance, on the other
hand, involves confinement to delineated and often∂ fortified spaces , in which observation is
enhanced∂ by a limitation of the range of mobility∂ of those observed. There tend to be significant∂ differences in the
social groups supervised∂ by the two forms of surveillance. Although∂ today everyone is subjected to thin∂ surveillance to some
degree, it disproportionately∂ affects the non-poor, whose actions∂ and transactions must be facilitated as well as∂ regulated. Access
to certain spaces may be∂ limited by thin means that require the wherewithal∂ or the proper identity, to be sure, but∂
departure from those spaces is normally voluntary∂ and at the pleasure of the person in∂ question∂
In contrast, thick surveillance disproportionately∂ affects the poor, because it is they∂ who are
disproportionately institutionalized;∂ the element of free movement characteristic∂ of thin surveillance is sharply
reduced, if not∂ eliminated altogether. Thick surveillance occurs∂ in prisons , military brigs, POW and∂ refugee
camps, and similar environments.∂ Probation, parole, surveillance via electronic∂ tracking devices, children’s welfare agencies,∂
boarding schools and the like comprise thin∂ variants of thick surveillance. They do not∂ necessarily restrict movement, but they may∂
do so, and in any case they involve a more∂ evident narrowing of freedom than thin surveillance∂ does. While those subjected to thick∂
surveillance are also subject to the thin variety,∂ they are less likely to be exposed to thin∂ surveillance than the non-poor because
their∂ means—and hence their actions and transactions—tend∂ to be more limited. In short, supervision∂ and confinement by the state
tend∂ to be much more immediate realities for∂ these groups than they are for the non-poor,∂ whose actions and transactions tend more∂
routinely to be outside the purview of the∂ state—but under that of commercial surveillance∂ schemes.∂ Finally, rule violations
detected by thin∂ surveillance can result in a person’s being∂ subjected to thick surveillance, while
subjection∂ to the latter is very likely to intensify in∂ later life the individual’s exposure to the former.∂ There are, further, the
secondary punishments∂ visited on those who have undergone∂ thick surveillance; these include disproportionate∂ difficulties in
finding employment,∂ earning a decent income, establishing or∂ maintaining family life, and participation in∂ political life. The
sequestration
associated with thick∂ surveillance tend to exacerbate the
difficulties∂ that those subjected to it find in “ re-integration ”∂ after release from the
institutions under ∂ which they were supervised . These difficulties,∂ in turn, often lead to
behaviors that∂ result in re-incarceration. The entire experience∂ of thick surveillance is thus likely
to∂ have profound consequences for the attitudes∂ toward the larger society of those subjected∂ to it.
and disruption∂ of the life course
AT T – criminal enforcement is topical
Surveillance includes state control over criminals, suspects and prisoners
Galetta 14 – PhD Candidate, currently developing her doctoral research project which addresses the question of how to regulate
state surveillance
(Antonella, “Reloading Data Protection,” p. 106)//BB
The exercise of state powers over criminals , suspects and prisoners is unavoidably made
through surveillance measures and practices nowadays. From a theoretical per-spective, the basic
foundations of criminal surveillance are rooted in the Panopticon which was indeed a prison in its early design.
However, criminal surveillance has undergone substantial changes in the last decades which are substantiated by dif-ferences between
Old and New Penology. In 1992 Feeley and Simon argued that a paradigm shift was occurring in the discourse of criminal justice,
prompted by "a new strategic formation in the penal field".37 While the Old Penology was concerned with the identification of
criminals for the purpose of ascribing blame and guilt, the New Penology focused on "techniques to identify
classify and manage groupings sorted by dangerousness".3s As the authors pointed out, the New Penology
was highly dependent on surveillance as it sought to sort, classify and separate the less from the
more dangerous, as well as to "deploy control strategies rationally".39 Although there is not unanimous
consensus over this thesis,40 there are two main trends in policing and criminology that support it, namely: the expansion of powers of
law enforcement authorities and intelligence forces (and the enhanced cooperation between the two)41 and the shift to more proactive,
preemptive, predictive and pre-crime patterns. This shift represents one of the main trends emerging in policing and criminology.42
Pre-crime implies that the "possibility of forestalling risks competes with and even takes precedence over responding to wrongs
done".43 Accordingly, pre-crime societies are based on calculation, risk, uncertainty, surveillance, preca-crime patterns. This shift
represents one of the main trends emerging in policing and criminology.42 'Pre-crime' implies that the "possibility of forestalling risks
competes with and even takes precedence over responding to wrongs done".43 Accordingly, pre-crime societies are based
on calculation, risk, uncertainty, surveillance, precaution, prudentialism, moral hazard, prevention and the pursuit of
security.44 These dynamics are also associated with similar trends in criminal law which can be sum¬marised as follows: greater
us of diversion; greater use of lixed penalties; greater use of summary trials; greater us of hybrid civil-criminal processes; greater use
Surveillance is influenced by
pre-crime patterns and adapts to them but it also contributes to trigger them. On the one hand,
of strict liability; greater incentives to plea guilty; and greater use of preventive orders.
surveillance is considered as an effective antidote to combat and prevent crime. On the other,
criminals and delinquents, it is said, can be found anywhere and this legitimises the broad resort
to surveillance.46 Nowadays surveillance technologies are introduced not only to detect but also to
prevent, deter crime and avoid criminal deviance. New Penology reaches these goals by
implementing specific surveillance practices such as profiling, dataveillance and biometrics. In a proactive, predictive
and pre-crime society every single person is considered as a potential target of surveillance systems and
practices. As mentioned earlier, the horizontal gaze of surveillance narrows the gap between the surveillant and the surveilled. and
so between criminals and non-criminals. This creates the so-called 'correctional continuum' or 'correctional spectrum' between
criminals and the community in which they live.47 In addition, the blurred difference between criminals and non-
criminals is coupled with the disappearance of the ideal line between prisons and the rest of
society, so that "it is by no means easy to answer such questions as to where the prison ends and
the community begins or just why any deviant is to be found at any particular point".48 From a
criminological point of view, today's surveillance societies appear as an " undifferentiated
open space ",'1' which conflicts flatly with the idea of cloture emphasised by I'oucault.5" In Lianos' words " the boundary
between normal and deviant has largely been erased" in contemporary dangerised societies.51
AT K – FW
Our use of empathy in conjunction with broader critique enables successful
anti-racist movements even if it remains in local spaces like debate
Chabot-Davis 4 - teaches twentieth-century U.S. literature and film at Bridgewater State College. Used to teach 20th century
American literature and culture in the History and Literature Program at Harvard University. Chabot Davis's articles on contemporary
culture have been published in Twentieth Century Literature, International Journal of Cultural Studies, Journal for the Psychoanalysis
of Culture and Society, South Atlantic Review, Politics and Culture, and Modern Fiction Studies
[Kim, “Oprah's Book Club and the politics of cross-racial empathy”, International Journal of Cultural Studies 2004 7: 399]
Lauren Berlant is right to be skeptical that a reading of a single novel could be solely responsible
for producing such radical changes in individuals. However, sympathetic reading experiences can
play an important role in a larger chain of events , alongside other moments of critical
thinking and encounters with alternative viewpoints that might shift an individual’s
perspective. As the white woman Audrey said in the program on Beloved, ‘I understand something now that I didn’t understand
before, and [the film] has made me want to understand more’ (p. 13). Reading can clearly alter one’s sense of
reality , as evidenced by a reader of Cane River who noted on the web-board: ‘I don’t know if it is heightened
awareness due to my reading the novel . . . but it seems like there is so much more in the news about
racism; just today I read two articles.’ Reading fiction can help a person to develop an understanding of the plight of others and a
sense of moral outrage, often seen as important precursors for action. In her ethnographic study of white women’s reading groups,
sociologist Elizabeth Long argues that ‘reading, especially when combined with communal reflection and
discussion, provides . . . in some cases, motivation for taking individual or collective action beyond
the world of books’ (Long, 2003: 24). Several whites in the on-line and televised discussions were putting
their anti-racist feelings to work in the public sphere , in their jobs as teachers and social workers serving
minority communities. Although it is unlikely that fictionreading was the sole catalyst for their occupational choices, their testimony
experiences of empathy in cultural space help to sustain and fortify their
ongoing political commitments . While Berlant doubts that emotional shifts in the private
suggests that
sphere ever get converted into a larger politics of change, Lawrence Grossberg argues
persuasively that ‘affective relations are, at least potentially, the condition of possibility for the
optimism, invigoration, and passion which are necessary for any struggle to change
the world’ (Grossberg, 1992: 86). While the experience of sympathy may produce merely selfsatisfied feelings of benevolence that substitute for committed action, I contend that the larger
impediment to radical change is not sympathy itself, but conditions that weaken its
effectivity – such as wide-spread public skepticism that protest can actually accomplish social
change in a world controlled by postmodern global capitalism. Like Grossberg, I see affective culture as an
underappreciated resource in combating the disenchantment that threatens to
nullify political resistance in the United States. My work on the politics of empathetic reading contributes to a
recent shift in American studies, calling for an end to the ‘separate spheres’ paradigm that divided public from private, masculine from
feminine, the world of political action from the world of feeling. The essays in the recent collection No More Separate Spheres!
suggest that the line between the public and the private is a blurry one, and that these two ‘spheres’ are in fact largely imbricated
(Davidson and Hatcher, 2002). With a similar goal, I have highlighted the political importance of empathetic
reading in fostering self-transformation and a radical interrogation of white privilege .
In this particular deployment of empathy, such moments of radical understanding could be seen
as an incipient form of political action, rather than its antithesis. This form of self-transformation
operates on a continuum with largerscale political actions in both ‘private’ and
‘public’ settings . Instead of equating the political only with the arena of elections, protest
movements, and collective organizing, scholars also need to consider the importance of local,
interpersonal encounters in effecting social change . Experiencing empathy for African Americans in
cultural space may move someone to object to a racist joke among colleagues or friends, or to persuade an older relative that mixedrace marriages can produce healthy and happy families. One of the white participants in the televised discussion of The Bluest Eye
adopted three abused black girls and is passionately working to help them to develop self-esteem. Is her anti-racist action
any less political because it takes place within the ‘private sphere’ of the family? I argue that such local
and personal examples of taking a moral stand do work to undermine racism , and are
probably necessary stepping stones for individuals to move towards more publicoriented anti-racist acts that require greater risk . The power of culture in fostering
personal self-transformation should not be undervalued . Although many of Oprah’s Book Club choices
have been disparaged for their rampant emotionalism, I have argued that their solicitation of sympathy is in fact
central to their cultural power. As Larry Grossberg contends, emotive genres are politically powerful
because they provoke identification, belonging and investment, providing audiences with
‘mattering maps’ which reveal ‘the places at which people can anchor themselves into the world,
the locations of the things that matter’ (1992: 82). At the end of the Oprah discussion of her book Song of Solomon,
Toni Morrison revealed her own dream to offer such mattering maps to readers: ‘It’s the dream of a writer . . . to have something
important, truly meaningful, happen to a person who’s ready for the happening and the key to it is the experience of reading a book. . .
. It’s not a lesson that said do this . . . and this is the solution, but to actually engage in the emotions, the actions, and the company . . .
of the characters’ (‘How’d They’, 1996). Oprah’s Book Club selections do not provide solutions to social
problems concerning race and gender, but they do offer intense emotional engagement that is
an essential ingredient of political engagement. Although sympathy has often worked to
legitimate the status quo, my analysis of Oprah’s Book Club demonstrates that affective reading
experiences can also disrupt ideologies of racial hierarchy . Conspicuously absent from
most analyses of cross-racial sympathy are reading experiences such as I have spotlighted here, in which
white women’s empathetic encounters with African American fictional characters led to an increased
politicization and desire to combat racism in public forums
such as The Oprah Winfrey Show
itself. For some white readers of African American fiction, these
testimonies of suffering offer merely a vicarious sensory
experience that does little to alter their own sense of privilege. These texts produce more radical reading effects
when empathetic connections are accompanied by critical reflection, when thought and feeling
combine to result in a critique of racism and a deeper respect for cultural
difference . While Oprah’s utopian claims about the power of individual texts to change the
world may seem naively optimistic, she is right about one thing – reading literature and watching films do shape the
feelings and ideologies of individuals. This belief, after all, has been central to the academic study of literature, and the motivation
behind the move towards multicultural literacy in education. In this academic climate of suspicion toward a
politics rooted in affect, critics need to consider that such cross-racial empathetic identifications
in the private sphere could play a crucial role in galvanizing support for anti-racist
public policy in America.
Evaluating the underlying structural problems of social systems leads to
influence over public policy.
Pattillo, Weiman, and Western, 02- (Mary Patillo is an associate professor of sociology and African American
studies and faculty fellow at the Institute for Policy Research at Northwestern University- David Weiman is a Professor of Economics
at Barnard college and Columbia University- Bruce Western is professor of sociology at Princeton University) Chapter 1: Introduction
From “Imprisoning America: The Social Effects of Mass Incarceration” p. 11-12, Russle Sage Foundation, NY 2002
print//droneofark
The unifying goal of this volume is to move beyond thinking of incarceration as merely punishment
and to place it instead within a larger system of social stratification and institutional relations.
Recognizing the simultaneous identities of prisoners (and former prisoners) as fathers and mothers, sons
and daughters, spouses, neighborhood residents, workers, and indeed citizens demands an
examination of the consequences of the 12 Incarceration experience for the fulfillment of those
other roles. In addition to studying the effects in individuals, scholarship, must interrogate the impact that our
mass incarceration policy has on other facets of society, such s citizenship rights or the labor
market To best achieve these goals we decided that the hook must he empirically based, interdisciplinary, and multimethod. First,
the concrete exposition of the far-reaching effects of incarceration through the use and analysis of
empirical data is crucial to broadening the scholarly and public understanding of contemporary
policy decisions. By bringing together leading researchers studying the connections between incarceration and processes such as
family formation, unemployment, and community well-being, this volume endeavors to build a foundation of
empirical knowledge that will inform public deliberations and generate further questions and
debates about approaches to crime and the treatment of marginal groups more broadly. Building such
a knowledge base requires input from multiple fields. The contributors to this volume come from economics, criminal justice,
psychology, sociology, and social work and hence provide a range of vantage points that require readers (even initiated researchers,
practitioners, and advocates) to consider new questions, entertain new hypotheses, and ultimately raise new challenges. Finally, and as
a result of this interdisciplinarity, the authors in this volume employ a wide range of methods, spanning the qualitative and quantitative
spectrum. They use innovative data sets collected at various levels of generality, from one field site to multiple cities to the nation.
Such diversity is necessary for understanding large-scale causal connections as well as particular
human stories.
AT K – FW – access
Accessibility arguments don’t address the tactical advantages of the
affirmative—the affirmative is a strategy of slipping in quietly through the
backdoor
Alexander 6
[2006, Michelle Alexander is an Associate Professor of Law and Director of the Civil Rights Clinic at Stanford Law School,
“Federalism, Race, and Criminal Justice”, Chapter 16 in “Awakening from the Dream Civil Rights Under Siege and the New Struggle
for Equal justice”, pp. 219-228]
Mass incarceration has, therefore, emerged as the white elite's new form of extraordinary social
control over black and brown people: Federalism, as articulated by states' rights advocates, has been used
to avoid the federal scrutiny of slavery, Jim Crow segregation, and now mass
incarceration. Throughout history, the crude federalist argument that states, localities, and
government officials should be free to oppress and control people of color has played a key
role in immunizing some of society's most racist and destructive institutions ,
beginning with slavery. Consistent with its historical pattern, the Supreme Court has made it virtually
impossible to challenge mass incarceration on the grounds of racial bias at all stages of the
criminal justice process except the point of entry. Viewed in this way, it is an act of defiance when
civil rights advocates file litigation challenging racial bias in the criminal justice
system . When we make it into the courtroom, it is only because we slipped in quietly
through a back door , defying the sign that reads: Access to the Judicial System
Denied . We should ignore that sign. Too often, I hear fellow civil rights advocates say, "There is
nothing that we can do to challenge mass incarceration or racial bias in the criminal justice
system, particularly given cases like McCleskey v. Kemp:' Imagine if Thurgood Marshall had said, "There is
nothing that we can do to challenge racial segregation, given Plessy v. Ferguson." We cannot be
so easily deterred. At the same time , however, we must begin to plant the seeds for a
broader movement. If we, as advocates, are to be anything more than a flea on the
elephant's back, we must describe the criminal justice system in language that makes clear
our interest in challenging more than isolated criminal justice policie s or discrete
violations of individuals' constitutional rights. We must build a movement that seeks the
eradication of the latest manifestation of a fundamentally racist ideology , an ideology
rooted in American history and adaptable to changing times. The necessity of a movementbuilding approach becomes clear once the emergence of the mass incarceration policy, and the
Court's role in protecting it, is put in its proper historical and political context. Looking back, it is
clear that piecemeal policy reform or litigation alone would have been a futile
approach to dismantling Jim Crow segregation . While those strategies certainly have
their place , the Civil Rights Act of 1964 and the concomitant cultural shift would never have
occurred without the cultivation of political consciousness in the African American community
and the resulting widespread activism. We have defeated enemies of racial justice before, and we
can do it again . It will take persistence, creativity, and the courage to reinvent ourselves as
advocates. The freedom fighters who came before us would expect no less.
AT K – FW – epistemology
The carceral apparatus manifests itself through physiological domination,
interpersonal and systemic violence, and pedagogical institutions
Rodríguez 10 [Dylan, The Disorientation of the Teaching Act:
Abolition as Pedagogical Position, Radical Teacher, Number
88, Summer 2010, MUSE, omak]
A working conception of the "prison regime" offers a useful tool of critical social analysis as well
as a theoretical framework for contextualizing critical, radical, and perhaps abolitionist
pedagogies. In subtle distinction from the criminological, social scientific, and common sense understandings of "criminal
justice," "prisons/ jails," and the "correctional system," the notion of a prison regime focuses on three interrelated technologies and
processes that are dynamically produced at the site of imprisonment: first, the prison regime encompasses the material
arrangements of institutional power that create informal (and often nominally illegal) routines and
protocols of militarized physiological domination over human beings held captive by the state. This
domination privileges a historical anti-black state violence that is particularly traceable to the latter stages of
continental racial chattel slavery and its immediate epochal aftermath in "post-emancipation" white supremacy and juridical racial
segregation/apartheid - a privileging that is directly reflected in the actual demography of the
imprisoned population, composed of a Black majority. The institutional elaborations of this white
supremacist and anti-black carcerai state create an overarching system of physiological domination that
subsumes differently racialized subjects (including whites) into institutional routines (strip searching
and regular bodily invasion, legally sanctioned torture, ad hoc assassination, routinized medical
neglect) that revise while sustaining the everyday practices of genocidal racial slavery. While there are
multiple variations on this regime of physiological dominance - including (Latino/a, Muslim, and Arab) immigrant detention, extraterritorial military prisons, and asylums - it is crucial to recognize that the genealogy of the prison's systemic
violence is anchored in the normalized Black genocide of U.S. and New World nation-building.2 Second,
the concept of the prison regime understands the place of state-ordained human capture as a
modality of social (dis) organization that produces numerous forms of interpersonal and systemic
(race, class, gender, sexual) violence within and beyond the physical sites of imprisonment. Here, the
multiple and vast social effects of imprisonment (from affective disruptions of community and extended familial ties to
long-term economic/geographic displacement) are understood as fundamental and systemic dimensions of the
policing and imprisonment apparatus, rather than secondary or unintended consequences of it.3 Third, the prison
regime encompasses the multiple knowledges and meanings that are created around the
institutional site and cultural symbol of "the prison," including those that circulate in popular
culture and among the administrative bureaucracies and curriculum of schools.
AT K – movements fail
State reform is critical to decarceration—movements have historically failed
Bleich, 89—B.A. from Amherst College, M.P.P. from Harvard University, J.D. from Boalt Hall School of Law, University of
California, Berkeley (Jeff, October 1989, “The Politics of Prison Crowding”, California Law Review, Lexis)//emchen
II THE EMERGENCE OF CROWDING [T]here's a pervasive sense of crisis, and we're not very clear what the crisis means. -Norval Morris n90 In light of the slippery nature of "crowding," the number of decisionmakers convinced that
America's prisons are overcrowded is striking. This Section explores the source of this uproar over crowding. It
argues that, to some extent, the "crisis" follows from objective events such as increases in prisoner populations and the courts' greater
receptiveness to lawsuits challenging conditions of confinement. This Section explains how the focus on crowding came into being
and how subsequent events developed and perpetuated the current emphasis on population densities. A. Prison Densities and
Crowding There has almost never been a time in our history when critics have not condemned the nation's prisons as too crowded. n91
As one would [*1145] expect, movements to reduce crowding have frequently coincided with increases in prison population. n92 Yet
changes in the level of concern about crowding are not indissolubly linked with changes in actual prison populations.
Movements to alleviate prison crowding often have not coincided with changes in prison
population. Several major construction and anticrowding reform movements occurred during periods of relative population
stability. For example, in 1931, the National Commission on Law Observance and Enforcement blamed
overcrowded conditions for hardening criminals, n93 and thereby launched a significant
decarceration movement . During the five years preceding this movement, however, populations had increased by only
five percent. n94 It was not until the period from 1936 to 1939 -- after the movement had stalled -- that there was a sudden increase in
prison populations. n95 Similarly, in the early 1970s, the Federal Bureau of Prisons embarked on a major prison building program,
n96 and some states initiated large-scale decarceration, n97 despite remarkably little change in prison population growth. n98
Likewise, prison crowding complaints have occasionally been ignored during periods of prisoner population expansion. For example,
a dramatic influx of new inmates between 1936 and 1939 contributed to a fifty percent increase in prison population during the 1930s.
In 1939, a major study of prisons concluded that serious overcrowding was one of two main evils of the American penal system. n99
Notwithstanding these developments and despite earlier reform efforts, there was little or no significant campaign for prison
construction or prison reform during this [*1146] period. n100 Thus, although there is surely a relationship between
increases in prison population and movements related to prison conditions, there is not an exclusive or
inevitable causal link . Rather, it appears that concern about prison crowding depends upon
normative and political conditions as well as actual population increases. The following Section
explores the forces that have produced the current growth in prison populations. It also explores the political changes both in and by
the courts that have contributed to concerns about prison crowding. B. The Origins of Modern Crowding America's prison population
experienced unprecedented growth during the 1970s and early 1980s; the average prison population increased more in the ten years
between 1975 and 1985 than it had in all of the preceding fifty years combined. n101 Many social ills have been blamed for this
growth -- everything from increased criminality among baby boomers n102 to the growth of the drug trade. n103 In contrast, this
Section argues that the primary causes of increasing prison populations after 1970 were largely political. During the 1970s, changes in
attitudes [*1147] towards prisoners, sentencing policies, and the expanded role of courts all contributed to the rapid growth of prison
populations. 1. Criminal Justice Policy Contrary to common understanding, the great rise in prison populations was not precipitated
by an increase in crime or in the number of individuals in the crime-prone age group. Victimization studies and official data reveal
that from 1975 to 1985, a period in which prison populations doubled, crime rates were actually declining. n104 Moreover, during the
largest period of prison population increases, the population of eighteen- to twenty-four-year-old males increased by only ten percent.
n105 Other factors, then, must explain the dramatic increase in prison populations in the late 1970s and early 1980s. The primary
source of the rise in prison populations was a dramatic change in criminal justice policies :
specifically, a shift to policies that mandated that convicted criminals be incarcerated, and incarcerated for
longer periods of time . n106 Prior to 1970, prison administrators were better able to adjust prison populations through
flexible parole criteria. n107 As prison populations increased, parole boards frequently advanced parole dates or took slightly greater
risks with parole candidates in order to ease the burden on a prison. n108 However, animated by both conservative concerns about
leniency to criminals and liberal complaints about the risk of inequity due to parole board discretion, several states attempted to curb
this discretion by adopting so-called "determinate sentencing laws." n109 Indeed, the movement away from parole board discretion
[*1148] was so great that between 1975 and 1982, ten states abolished their parole boards entirely. n110 California's determinate and
statutes established minimum prison sentences for given
offenses and prescribed mandatory prison terms for felonies involving a deadly weapon or for multiple felony
minimum sentencing laws were typical. These
offenses. n111
AT K – piecemeal link
The distinction between pragmatism and radicalism is falsely constructed and
the affirmative holds the two in creative tension—decarceration strategies
enable us to take advantage of current conditions without sacrificing political
vision
Berger 13 - Assistant Professor at the University of Washington Bothell
(Dan, “Social Movements and Mass Incarceration: What is To Be Done?,” Souls: A Critical Journal of Black Politics, Culture, and
Society, Volume 15, Issue 1-2, 2013, pages 3-18)
The strategy of decarceration combines radical critique, direct action, and tangible
goals for reducing the reach of the carceral state. It is a coalitional strategy that
works to shrink the prison system through a combination of pragmatic demands and
far-reaching, open-ended critique . It is reform in pursuit of abolition . Indeed,
decarceration allows a strategic launch pad for the politics of abolition , providing what
has been an exciting but abstract framework with a course of action . 32 Rather than
juxtapose pragmatism and radicalism, as has so often happened in the realm of radical activism, the strategy of
decarceration seeks to hold them in creative tension . It is a strategy in the best tradition
of the black freedom struggle . It is a strategy that seeks to take advantage of political
conditions without sacrificing its political vision . Today we are in a moment where it is
possible, in the words of an organizer whose work successfully closed Illinois's infamous supermax prison Tamms in January 2013,
to confront prisons as both an economic and a moral necessity. 33 Prisons bring together diverse forms of
oppression across race, class, gender, sexuality, citizenship status, HIV status and beyond. The movements against them,
therefore, will need to bring together diverse communities of resistance. They will need to unite people
across a range of issues, identities, and sectors. That is the coalition underlying groups such as Californians United for a Responsible
fight against prisons is both a targeted
campaign and a broad-based struggle for social justice . These movements must include the leadership
Budget (CURB), the Nation Inside initiative, and Decarcerate PA. The
by those directly affected while at the same work to understand that prisons affect us all. This message is the legacy of prison
rebellions from Attica in 1971 to Pelican Bay in 2012. The
challenge is to maintain the aspirational
elements of that message while at the same time translating it into a political
program . Decarceration, therefore, works not only to shrink the prison system but to
expand community cohesion and maximize what can only be called freedom . Political
repression and mass incarceration are joined at the hip. The struggles against austerity,
carcerality, and social oppression, the struggles for restorative and transformative justice, for
grassroots empowerment and social justice must be equally interconnected . For it is only
when the movement against prisons is as interwoven in the social fabric of popular resistance as
the expansion of prisons has been stitched into the wider framework of society that we might
hope to supplant the carceral state. There are many obstacles on the path toward decarceration; the existence of a strategy
hardly guarantees its success. Until now, I have focused largely on the challenges internal to the movement, but there are even taller
hurdles to jump in encountering (much less transforming) the deeply entrenched carceral state. Perhaps the biggest challenge,
paradoxically, comes from the growing consensus, rooted in the collective fiscal troubles of individual states, that there is a need for
prison reform. In that context, a range of politicians, think tanks, and nonprofit organizations—from Right on Crime to the Council on
State Governments and the Pew Charitable Trusts—have offered a spate of neoliberal reforms that trumpet free market solutions,
privatization, or shifting the emphasis away from prisons but still within the power of the carceral state. Examples include the “Justice
Reinvestment” processes utilized by states such as Texas and Pennsylvania that have called for greater funding to police and
conservative victim's rights advocates while leaving untouched some of the worst elements of excessive punishment. These
neoliberal reforms can also be found in the sudden burst of attention paid to “reentry services” that
are not community-led and may be operated by private, conservative entities. 34 Perhaps the grandest
example can be found in California, where a Supreme Court ruling that overcrowding in the state's prisons constituted cruel and
unusual punishment has been met with a proposal for “realignment,” that shifts the burden from state prisons to county jails. 35 A
combination of institutional intransigence and ideological commitment to punish makes the road ahead steep. Even
as many
states move to shrink their prison populations, they have done so in ways that have left in place
the deepest markings of the carceral state, such as the use of life sentences and solitary
confinement, and the criminalization of immigrants. Social movements will need to confront
the underlying ideologies that hold that there is an “acceptable” level of widespread
imprisonment , that there is a specter of villainy out there—be they “illegal immigrants,” “cop killers,” “sex criminals”—
waiting in the wings to destroy the American way of life. 36 There is a risk , inherent in the
sordid history of prison reform, that the current reform impulse will be bifurcated along poorly
defined notions of “deservingness” that will continue to uphold the carceral logic that separates
“good people” from “bad people” and which decides that no fate is too harsh for those deemed
unworthy of social inclusion. This, then, is a movement that needs to make nuanced yet
straightforward arguments that take seriously questions of accountability while
showing that more cops and more (whether bigger or smaller) cages only takes us further
from that goal . 37 At stake is the kind of world we want to live in, and the terms could not be
more clear: the choice, to paraphrase Martin Luther King, is either carceral chaos or liberatory community.
The framework of community—as expressed Decarcerate PA slogan “build communities not prisons” and the CURB “budget for
humanity” campaign—allows for a robust imagination of the institutions and mechanisms that foster community versus those that
weaken it. It focuses our attention on activities, slogans, programs, and demands that maximize communities. In short, it allows for
unity. If the state wants to crush dissent through isolation, our movements must rely on
togetherness to win. Solidarity is the difference between life and death . State repression
expands in the absence of solidarity . Solidarity is a lifeline against the logic of
criminalization and its devastating consequences. For the most successful challenges to
imprisonment come from intergenerational movements: movements where people raise each
other's consciousness and raise each other's children, movements that fight for the future because
they know their history. Here, in this pragmatic but militant radicalism, is a chance to
end mass incarceration and begin the process of shrinking the carceral state out of
existence.
No link – their evidence assumes positive reforms – the aff is a non-reformist
reform
Ben-Moshe 13 – Ph.D. in Sociology from Syracuse, Postdoctoral fellow at the department of Disability and Human
Development at the University of Illinois at Chicago, Assistant Professor in Disability Studies, University of Toledo
Liat Ben-Moshe, 2013, Academia.edu, “Assistant Professor in Disability Studies, University of Toledo”, 7/7/2015, \\BD
This conceptualization of placing reform and abolition on a continuumcan also be traced to the pioneering work ∂ Politics of
Abolition∂ , in whichMathiesen (1974) follows Andre Gorz’s distinction between reformist and“non-reformist” reforms. Reformist
reforms are situated in the discursiveformation of the system as is, so that any changes are made
within or againstthis existing framework. Non-reformist reforms imagine a different horizonthat
should be realizable for the improvement of humanity, and are not limited by a discussion of what
is possible at present. Mathiesen expands this notionto state that non-reformist reforms that are effective need to be of the
abolish-ing kind. He also creates a typology that distinguishes between positive andnegative reforms.
Positive reforms are changes that improve the system so itwill act more effectively, so that the
system gains strength and abolition be-comes more difficult. Examples of positive reforms in the current penal
sys-tem include probation and technological monitoring systems (such as ankle bracelets) which, although ensure that those convicted
could live outside of the prisons, further the reach of the penal regime to populations and actionsthat it had not dealt with before. On
the other hand, negative reforms arechanges that abolish or remove parts of the system on which
it is dependent(Mathiesen, 1974). An example of negative reforms could be to demand bet-ter health care for prisoners in current
prisons and jails, to a point where the prison system will not be able to afford these conditions and will have to start decarcerating
inmates who require medical attention. This strategy was alsoused in deinstitutionalization lawsuits to decarcerate inmates from
institutionsfor the developmentally disabled in the 1970s. Even if it makes the system look more responsive, from
a public relations standpoint, such reforms do not contribute to the growth of the system as a
whole.
Even abolitionists support pragmatic reform
Ben-Moshe 13 – Ph.D. in Sociology from Syracuse, Postdoctoral fellow at the department of Disability and Human
Development at the University of Illinois at Chicago, Assistant Professor in Disability Studies, University of Toledo
Liat Ben-Moshe, 2013, Academia.edu, “Assistant Professor in Disability Studies, University of Toledo”, 7/7/2015, \\BD
This relationship between abolition and reform is not only a scholarlydebate, but also one with
pragmatic implications. For instance, Angela Y.Davis (2002), a committed abolitionist , does not
believe there is a strict line between reform and abolition. The question is what kinds of reforms
aresought, and whether they will strengthen the system in the long run. For in-stance, fighting for
health care for prisoners is something activists shouldsupport, as integral to abolitionist and
decarcerating strategies. However,some health care initiatives are opposed by abolitionists such as attempts toopen new
prison hospitals or separate clinical wards, as these would only ex- pand the scope of incarceration in the long run. Many prison
abolition andanti-psychiatry activists are insistent that the trend to develop mental healthservices within the prison only serves to
criminalize (mostly) women with psychiatric and cognitive disabilities. Quality health services of this nature aresparse outside the
walls of the prison. Why should funds go to operate theseservices within an already oppressive system
Grassroots activism good and necessary- has caused reform even in highly
conservative areas
Porter, Director of Advocacy at the Innocence Project, ’15 [Nicole, former director of the Texas
ACLU’s Prison & Jail Accountability Project, February 2015, ‘State Criminal Justice Advocacy in a Conservative Environment.’ Pg.
1. Accessed 6 July 2015. http://www.sentencingproject.org/detail/publication.cfm?publication_id=582&id=156/VL
This overview highlights successful advocacy strategies employed in conservative political
environments in the states of Indiana, Missouri, and Texas. While the ability to impact state reform varies by state,
the strategies described here can aid activists developing future campaigns. Given the challenge of
mobilizing political will to move towards substantially reducing state prison populations, many
advocacy organizations are seeking policy changes that have a meaningful impact. Understanding
how state-based advocacy strategies have resulted in achieving reforms in conservative states is key
to future successes.
Campaign tactics that gained conservative support included: research, media outreach, direct and grassroots
lobbying, direct actions, leveraging grass-tops contacts, and coalition building. Advocates also
leveraged inside and outside strategies to move reforms. Inside strategies have prioritized working
within government systems to influence decision makers and have included legislative and
administrative lobbying, providing testimony, and participating in policy development, while
outside strategies have involved hosting educational events, earning media attention, and
organizing protests and rallies. Learning from successful efforts can hopefully raise awareness of
effective approaches to changes in policy and practice.
“Piecemeal”, specific targeted practices empirically work- shifts the political
climate and creates long-term reform
Porter, Director of Advocacy at the Innocence Project, ’15 [Nicole, former director of the Texas
ACLU’s Prison & Jail Accountability Project, February 2015, ‘State Criminal Justice Advocacy in a Conservative Environment.’ Pg.
8. Accessed 6 July 2015. http://www.sentencingproject.org/detail/publication.cfm?publication_id=582&id=156/VL
Advocates are challenged to develop strategies that respond to various factors including political
climate and competing priorities. Realizing successful advocacy campaign goals is often dependent
on assessing which approach is likely to succeed at a particular time. Over time, advocates have
adopted pragmatic approaches to sentencing reform to achieve long-term goals. In many cases,
advocacy organizations with their allies have worked to shift the political climate and garnered muscular
support to advance public safety that is less focused on incarceration, while investing more heavily in
treatment and prevention.
AT K – abolition
Abolition fails – cedes power to the right – middle-of-the-road approaches are
best
Petersilia and Cullen 14 – Ph.D., Adelbert H. Sweet Professor of Law at Stanford Law School, and∂ the Co-Director of
Stanford’s Criminal Justice Center, 2014 Recipient of the Stockholm Prize in Criminology, past President of the American Society of
Criminology; Ph.D., Distinguished Research Professor in the School of Criminal Justice∂ at the University of Cincinnati, past
President of the American Society of Criminology (ASC) and the Academy∂ of Criminal Justice Sciences
Joan Petersilia and Francis T. Cullen, 2014, Social Science Research Network, “LIBERAL BUT NOT STUPID: MEETING THE∂
PROMISE OF DOWNSIZING PRISONS”, 7/6/2015, \\BD
The key point of this Article is that despite these important developments,∂ any sort of liberal hubris—“we were right after all”—
should be steadfastly∂ avoided. In corrections, those on the left have been wise in showing what does∂ not
work but not very good in showing what does work; that is, we have been∂ better at knowledge
destruction than knowledge construction.9 Thus, a policy∂ opportunity is not the same as a policy
success; an opportunity for reform can∂ be flubbed . The challenge of downsizing prison
populations is precisely that it∂ might be undertaken in a “stupid” way that ensures failure or, in
the least, no∂ more than a persistence of the status quo. In the end, we must create a new∂ “criminology of
downsizing” that can contribute to the policy conversation on∂ how best to reduce the size of the inmate population.10 We must
strive to be∂ “ liberal but not stupid .”11
Alt fails – empirics
Petersilia and Cullen 14 – Ph.D., Adelbert H. Sweet Professor of Law at Stanford Law School, and∂ the Co-Director of
Stanford’s Criminal Justice Center, 2014 Recipient of the Stockholm Prize in Criminology, past President of the American Society of
Criminology; Ph.D., Distinguished Research Professor in the School of Criminal Justice∂ at the University of Cincinnati, past
President of the American Society of Criminology (ASC) and the Academy∂ of Criminal Justice Sciences
Joan Petersilia and Francis T. Cullen, 2014, Social Science Research Network, “LIBERAL BUT NOT STUPID: MEETING THE∂
PROMISE OF DOWNSIZING PRISONS”, 7/6/2015, \\BD
In 1982, Austin and Krisberg were asked by the National Academy of Sciences∂ to systematically
review all prior efforts to use alternatives to incarceration∂ to reduce levels of imprisonment. They
considered such options as com- munity-based sentencing options (e.g., community service, restitution),
postincarceration∂ release programs (e.g., work release, work furloughs), and legislation∂ to limit state prison
populations (e.g., probation subsidy programs).59 The∂ results were dismal . “A careful review of the research
literature on alternatives∂ to incarceration,” Austin and Krisberg concluded, “suggests that their promise∂ of
reducing the prison population has remained largely unmet.”60 In each case,∂ goal displacement occurred, as
alternative options were transformed to serve∂ “criminal justice system values and goals other
than reducing imprisonment”∂ (e.g., net-widening to increase control, probation subsidies becoming a form of∂ revenue
sharing).61
Abolition now fails – other methods will fill in
Ben-Moshe 13 – Ph.D. in Sociology from Syracuse, Postdoctoral fellow at the department of Disability and Human
Development at the University of Illinois at Chicago, Assistant Professor in Disability Studies, University of Toledo
Liat Ben-Moshe, 2013, Academia.edu, “The End of Prisons.: Reflections from the Decarceration Movement”, 7/7/2015, \\BD
When a system is abolished there is a danger that other systems with the same goals would arise
to fill the void left by the abolished system. Famedsociologist W.E.B. Du Bois, in his book ∂ Black Reconstruction∂
(1999 [1935]),discusses abolition not as a mere negative process, one of tearing down. It isultimately about creating new institutions.
Du Bois was very insistent that in order to abolish slavery in modern times, new democratic institutions
have to be established and maintained. Because that did not occur, slavery found anew home in
Jim Crow, convict lease systems, second class education andmass incarceration. Thus, the abolition of slavery was only successful
on thenegative aspect, but no new institutions were created to successfully incorpo-rate black people into the existing social order.
Prisons today have thrived precisely because of the lack of such resources that Du Bois was
arguing for.Prisons today can’t be abolished until such equality-ensuring mechanisms arein
place (Davis, 2005). Being free of chains is only the beginning.
AT K – abolition – perm
The perm solves – small reforms are key to large-scale abolition
Ben-Moshe 13 – Ph.D. in Sociology from Syracuse, Postdoctoral fellow at the department of Disability and Human
Development at the University of Illinois at Chicago, Assistant Professor in Disability Studies, University of Toledo
Liat Ben-Moshe, 2013, Academia.edu, “Assistant Professor in Disability Studies, University of Toledo”, 7/7/2015, \\BD
3.∂ ∂ The Relation Between Abolition and Reform∂ In∂ Instead of Prisons∂ (1976), an early published attempt to conceptualize pris-on
abolition in the United States, Fay Honey Knopp posed the connection between abolition and reform. Some of the questions
this classic primer triesto answer are whether it is possible to work for prison reform without
beingco-opted, and whether working toward abolition means that prisoners will beleft in
intolerable conditions in the meantime. This tension is a key character-istic of the penal/prison abolitionist stance and
there is no agreement as tohow to resolve it. The movement is diverse and ranges from calls for focusingon the present circumstances
of prisoners and advocating for gradual decar-ceration (as described by the attrition model below), to those who contendthat any type
of reform would lead to the growth of the prison-industrial-complex and should be avoided by activists.This seeming chasm
between pragmatism and vision for the future of anon-carceral society are not necessarily
binary opposites. Fay Honey Knopp suggests conceptualizing the long-term goal of prison
abolition as a chain for shorter campaigns around specific issues—like jail diversion, restitution
pro-grams, or the move of those released to community placements (1976). Suchs trategic use of abolition
and reform can also be applied to the context of abol-ishing psychiatric confinement and forced medical treatments, as suggested
byanti-psychiatry activist Bonnie Burstow in her keynote speech in the 2009 Psy-chOut conference. She contends that the
short term goals of anti-psychiatryactivists, such as reform efforts , should be kept as such, as
concrete and direct partial abolitions (or reforms) on the road to long term change.
The perm solves—piecemeal reform is key to spill over to overall abolition in
the most effective way
Schenwar, 14—Truthout’s editor-in-chief, board of advisors on Waging Non-Violence (Maya, excerpt from the book Locked Down,
Locked Out: Why Prison Doesn't Work and How We Can Do Better, published by Berrett-Koehler, "What if We Abolished Prisons:
Can decarceration work?", Alternet, www.alternet.org/books/what-if-we-abolished-prisons)//emchen
Decarcerate! Shrinking: In a country where more than 7 million people are bound up in the
“correctional” system, this is how many people working against incarceration frame their goal. You can’t pop this
balloon with just one pin . Not everyone working to close Tamms was interested in abolishing all prisons, but many
were. They were simply starting with one. Historian and activist Dan Berger points to the
importance of such concrete
change-making—closing buildings, reducing prison populations, slashing budgets, dismantling
policies that confine people even after release—to the overall goal of freeing ourselves from the prison
nation. He defines this movement as decarceration: “ reform in pursuit of abolition .” The word
“incarcerate” stems from the same root as the word “cancel”: Both mean to cross something, or someone, out (whether with bars, or
lines, or actions). Decarceration, then, is also a movement toward un-canceling people—not just by
fighting for their release, but by recognizing and supporting their humanity. The strategy that drove the
Tamms Year Ten campaign was about making visible the lives of people who’d been “canceled” in the most extreme way. And
Tamms was not the only place in which people in solitary confinement were finding ways to come together and speak out. In fall
2012, more than a year after they’d waged two three-week hunger strikes, prisoners in California’s Pelican Bay SHU announced a
historic Agreement to End Hostilities, which was then signed and publicized by thousands of people inside and outside of prison,
building a coalition across the state. It read, in part: Beginning on October 10, 2012, all hostilities between our racial groups ... in
SHU, Ad-Seg, General Population, and County Jails, will officially cease. This means that from this date on, all racial group hostilities
need to be at an end ... and if personal issues arise between individuals, people need to do all they can to exhaust all diplomatic means
to settle such disputes; do not allow personal, individual issues to escalate into racial group issues.... Collectively, we are an
empowered, mighty force, that can positively change this entire corrupt system..., and thereby, the public as a whole. Prisoners
emphasized that their actions extended beyond a pursuit of reforms. They were challenging the
prison nation’s assumption of—and instigation of—ongoing “racial warfare” behind bars, which is
used to justify solitary confinement and other restrictive policies meant to isolate prisoners from each other.
The perm solves best—it is possible to use reforms as the method for the larger
goal of abolition
Schenwar, 14—Truthout’s editor-in-chief, board of advisors on Waging Non-Violence (Maya, excerpt from the book Locked Down,
Locked Out: Why Prison Doesn't Work and How We Can Do Better, published by Berrett-Koehler, "What if We Abolished Prisons:
Can decarceration work?", Alternet, www.alternet.org/books/what-if-we-abolished-prisons)//emchen
In June 2013, when prisoners in the Pelican Bay SHU waged a nonviolent hunger strike to demand better conditions and more
opportunities to connect with people on the outside, building networks that fostered both action and visibility
were key. Tens of thousands of California prisoners fasted in solidarity. An outside movement led by family members of the
strikers rose up across the state and across the country to support the prisoners with letters, phone calls to the Department of
Corrections, and rallies. The strike garnered unprecedented media attention, appearing in many major newspapers and on radio and
television stations. Isaac Ontiveros of the prison abolitionist organization Critical Resistance tells me about the group’s participation in
the strike: “They hollered at us before the strike and said, ‘We’re going to do this thing on the inside, and we need your support from
the outside’.... They came up with solutions for how to resolve harm and conflict inside, without violence. They won some demands,
but they also showed us—if it’s possible to do this in solitary, think of what’s possible for people in less restrictive conditions.”
What’s more, many of the same arguments raised against the scourge of solitary can also be used against imprisonment itself, though
with different connotations: Isolation, dehumanization, deprivation of contact, and violence are characteristics of incarceration
everywhere. And as Isaac mentioned, the strikers’ actions—the historic commitment made through the Agreement to End Hostilities,
and the project of coordinating nonviolent resistance despite enormous communication barriers—also point to exciting possibilities for
resolving harm and conflict without (in fact, in spite of) law enforcement and prison. However, much media coverage
reduced the strike’s significance to a protest against specific conditions alone, creating the
illusion that prisons, and even solitary confinement, can be made “humane” —that they are fixable. Suddenly,
mainstream voices were issuing calls to cease the “cruel and unusual punishment,” pointing to certain
brutal practices as “out of the ordinary” modes of discipline. Of course, ameliorating conditions is always an
important goal: It’s crucial, for example, to provide nutritious food and allow prisoners to call their families. But in framing
these improvements as ends in themselves, the terms of “ordinary” punishment are
solidified : Caging people is “usual,” so it’s fine! Additionally, small concessions are sometimes used to
divert attention from larger ongoing injustices . Several months after the 2013 hunger strike, Dolores
Canales of California Families to End Solitary Confinement noted in a MintPress News interview that, despite a few reforms
implemented by the Department of Corrections—such as changes in criteria for placing people in SHUs—the basic picture
hadn’t changed. “They can still use solitary indefinitely,” Canales said. “They don’t see a problem
with it, with leaving somebody for thirty or forty years in their cell. They won’t acknowledge it’s a problem.”
And so, doing decarceration-focused work means bearing in mind long-term impacts . For
instance, California Families to Abolish Solitary Confinement sets ending the practice of isolation as its ultimate goal. And as the
LGBTQ prison abolitionist group Black and Pink’s mission statement puts it, “Any advocacy, services, organizing and
direct action we take will be sure to remove bricks from the system, not put in others we will need
to abolish later.”
Turn—abolishing prisons crushes freedom and destroys a prisoner’s wellbeing
Schenwar, 14—Truthout’s editor-in-chief, board of advisors on Waging Non-Violence (Maya, excerpt from the book Locked Down,
Locked Out: Why Prison Doesn't Work and How We Can Do Better, published by Berrett-Koehler, "What if We Abolished Prisons:
Can decarceration work?", Alternet, www.alternet.org/books/what-if-we-abolished-prisons)//emchen
prisons and reducing populations don’t blaze a
straight path to freedom . It can be jagged. It can be messy. When Illinois Governor Pat Quinn announced
“There’s Too Many People in This Prison” Closing
in February 2012 that Dwight Correctional Center would be closing along with Tamms, decarceration activists both inside and outside
were jubilant. The closing of a prison heralds the possibility of the entire system’s crumbling. It’s not an unheard-of opinion; Dwight’s
closing wasn’t handled well. Before the shutdown, the prison watchdog group John Howard Association warned against rapidly
closing Dwight: “Absent a clear plan to reduce population, the shuttering of Dwight is likely to exacerbate
crowded conditions [at other prisons], which may further undermine the health, welfare and safety of
staff and inmates,” the association argued, adding that Logan’s location—further from Chicago than Dwight—would make visiting
more difficult for most families. Laurie Jo Reynolds, who helped lead the campaign to close Tamms and also advocated closing
shutting down a prison isn’t always a perfect tactic , nor should it be
undertaken unilaterally without consideration for prisoners’ well-being . “Some people talk about
Dwight, notes that
it as a strategy where you close prisons and then there’s overcrowding, and that results in more pressure to reduce prison populations,”
she says. “But then do you do that on the backs of the people there?”
The plan is a prerequisite to the counterplan—it’s structurally impossible to
abolish prisons overnight—piecemeal reforms like the plan is key
Schenwar, 14—Truthout’s editor-in-chief, board of advisors on Waging Non-Violence (Maya, excerpt from the book Locked
Down, Locked Out: Why Prison Doesn't Work and How We Can Do Better, published by Berrett-Koehler, "What if We Abolished
Prisons: Can decarceration work?", Alternet, www.alternet.org/books/what-if-we-abolished-prisons)//emchen
to approach that towering goal of getting people out —and preventing
people from going in? Well, if there were a sure way to do it tidily, it might already have been
accomplished. As Joseph “Jazz” Hayden, who became an activist while incarcerated and now heads up the New York-based
Campaign to End the New Jim Crow (named after Michelle Alexander’s book), puts it, “This system of power has a long
history, from the genocide of indigenous populations, enslaving Africans, chain gangs, convict lease,
now mass incarceration and perpetual punishment and collateral consequences. They’re not going to
just let us take it down.” The answer, says Jazz, must be to chip away at the edifice from many
different directions , to unite community groups and build coalitions bent on halting the cycle.
Local groups in New Orleans forged such a coalition to challenge that cycle in the wake of tragedy. When Hurricane Katrina hit
Getting People Out How
New Orleans in 2005, it shattered most of the Orleans Parish Prison (OPP), the city’s sprawling jail complex, leaving the people inside
wading through chest-deep water for hours, awaiting rescue until after the storm was over. The hurricane drew attention to
conditions inside the jail, as well as to the racism that drove the
system . Eighty-six percent of the people in the jail are black, and the coalition stated, “Subhuman conditions
at OPP are intimately tied to the value that we as a city assign to African American life, and our staggering incarceration
rate is fundamentally about our society’s fear of black people .” And so, at a time when the city could have
overcrowding and heinous
used the evident “overcrowding” as an excuse to build more space, the Orleans Parish Prison Reform Coalition seized the opportunity
to advocate for a cap on the jail population, to force the release of some prisoners and prevent incarcerating new ones. (As Layne
Mullett, a cofounder of the Philadelphia-based group Decarcerate PA, notes, “If they build it, they will fill it—and they will probably
overfill it.”) The coalition brought together faith communities, ex-prisoner groups, the American Civil Liberties Union, Critical
Resistance’s New Orleans chapter, BreakOUT! (a group focused on the criminalization of LGBTQ youth), The National Lawyers
Guild, and others. They pushed for a 1,438-person jail limit, and for the closing of all other jail buildings into which the city could
transfer people. After years of hosting public comment forums, conducting public education campaigns, holding press conferences,
and delivering lengthy petitions to the city council, they won their limit: a city ordinance capping the jail size at 1,438 and mandating
the closure of additional jail buildings. However, says Audrey Stewart, one of the coalition’s organizers, “ winning” doesn’t
mean achieving a cap and stepping back. “There have been several recent amendments to the ordinance that have
allowed for other buildings to remain open longer than specified,” she tells me. “We’re working to enforce the cap—
and to push for reducing our still extremely high incarceration rate.” When it comes to decarceration, a
victory is never the end.
The alternative fails—there is no coherent path beyond prisons—only
piecemeal reforms can build a different solution
Schenwar, 14—Truthout’s editor-in-chief, board of advisors on Waging Non-Violence (Maya, excerpt from the book Locked Down,
Locked Out: Why Prison Doesn't Work and How We Can Do Better, published by Berrett-Koehler, "What if We Abolished Prisons:
Can decarceration work?", Alternet, www.alternet.org/books/what-if-we-abolished-prisons)//emchen
Where will we turn to deal with violence, harm, and conflict in a landscape that’s not fashioned around incarceration? Since right now,
prison is society’s go-to “solution,” thinking beyond the prison means not only uprooting it, but also
offering new answers to harm . Layne from Decarcerate PA articulates it like this: “Abolition is a
complicated goal which involves tearing down one world and building another.” They’re
interconnected, of course—the communities and strategies and visions concocted while doing the “tearing
down” provide a glimpse of that world beyond prisons . As the Pelican Bay prisoners demonstrated,
strategies for connection and interrelation, for staving off harm and violence, can be forged mightily while straining against thick
walls of injustice. But no matter how you swing it, decarceration comes with a healthy share of
unpredictability. Without prescribed, violently enforced systems dictating how we move through
the world, we’ll need to come together and pave our own roads forward.
Abolishing the system does nothing to solve the greater power that underlies
the prison institution—only by activating our own agency as the oppressed can
we get rid of it for good
Senger, 6 (William, 2006, "Abolition: Good Idea/Bad Approach", Journal of Prisoners on Prisons Vol. 1 No. 1 Summer,
www.jpp.org/documents/forms/JPP1_1/Senger.pdf)//emchen
The issue of abolishing prisons in Canada is very complex. Those who support the idea must be thoroughly committed to this cause.
These abolitionists are fighting against a very powerful system , a system which survives by
oppressing those within the prison and those outside it who seek to change the plight of prisoners. The prison
system is comprised of several bureaucratic microcosms: the Correctional Services of Canada and other governmental agencies, the
courts; the police, and most importantly the guards' union. These agencies combined have the ability to manipulate
every facet of our society. They control public opinion by baiting the press with lies , and
consequently affect elections, beliefs and prejudices. They are not about to let their power structure erode. Any
organisation which opposes them jeopardizes itself. The prison system has the power to do most anything
imaginable and not be held accountable for its actions. This power is unfathomable to the average
citizen as s/he is kept ignorant of its existence. The only people who truly have a grasp on what this power is and where it originates
are the men and women in this country who are incarcerated in prisons . In prison a person learns just what it means
to be oppressed, and how far-reaching that oppression is. Abolitionists have not been
successful to date because they do not understand fully what it is they must do to achieve
their goals. The abolitionists are trying to change things at the level of the incarcerated when the
solution lies in eroding the power of the entire system . This misdirection is .another example of the
systems power. The system reacts enough at the prison level to make the abolitionists feel that they are accomplishing something
when, in fact, they are not. The abolitionists are not going to be successful until such time as they change their direction of attack.
Abolitionists have been proceeding in the direction of prison reform. Activists such as Claire Culhane (1980)
have worked to improve conditions within the prisons, attacking issues such as solitary confinement and living conditions. The
hope of the activists is that by raising the awareness of the general public concerning prison
conditions, the public will become outraged and demand abolition or at least a prison program
which rehabilitates prisoners. The activists want the public to realize that the people who are now in prison will one day be
on the street again, and that the best interest of society is served by ensuring that "excons" have been treated fairly while incarcerated:
society will suffer if these "ex-cons" are bitter when they are released. Abolitionists fail to see that the work they are
doing in prison reform may be doing more harm to their cause than good . By insisting on
change at the level of prison reform they are shifting the focus of attention from the system to the individual
prison. This practice allows the system to act behind the scenes: to make decisions without
interference. Though the work the abolitionists are doing has a positive effect on the daily lives of the prisoners, the system is
becoming more powerful every day. The abolitionists are increasing public awareness but not on the real
issue . The end result is that if the public ever does get involved en masee, they will work to better the daily living conditions of the
prisoner instead of working to abolish the system. It is safe to say that the abolitionist has set the focus on the
wrong subject . The real problem which faces abolitionists is that the hierarchy in Ottawa has no control over its own
institutions. If abolition is to occur, the power of the subordinates in the system will have to be removed. One example of subordinate
power is the guards' union which gets more powerful each time a new penitentiary opens and the union membership increases by
absorbing the new recruits. The union also becomes more powerful with each riot it causes since it can use prison riots as a bargaining
tool to increase membership or salaries. Guards are dependent upon the system for their livelihood. Because they are right in the thick
of the action, they can manipulate events in their favour. The guards' union and its activities are not scrutinised by any government
department and therefore it polices its own activities. This is a great deal of authority 1 Journal of Prisoners on Prisons Vol. 1 No. 1
Summer (1988) which the union exploits at every opportunity. Abolition of prisons will never occur until the power of the guards'
union is eroded. The union is only one example of a bargaining unit which requires the survival of the prison system. Other jobs are
created by the prison system: clerical staff, building contractors, suppliers, administrators, and employees working in prison industries
and services. These groups would fight abolition just to save their jobs. The entire system is a business now, more interested in jobs
and money than rehabilitation or abolition. The power of this system is in its ability to provide secure employment. Any attempt
to change the system must take place at the source of the power. The groups who hold this power
must be exposed for what they really are: a violent, corrupt, and greedy group of oppressors who are making a living by
degrading and oppressing prisoners. Until such time as power is taken away from the oppressors, the
injustices occurring behind prison walls will continue. Men and women will continue to leave
prisons with bitter feelings for the diseased society which allowed them to suffer. Abolition can
only occur when the power of the oppressor is in the hands of the oppressed. The activists
working to better prison conditions are only succeeding in giving the system more to oppress.
AT K – abolition – immigration-specific
Piecemeal reform is sufficient to fix criminal justice
Fan, 13 -( Mary Fan is an Associate Professor of Law, University of Washington School of Law.) “The Case For Crimmigration
Reform” North Carolina Law Review Vol 92., 2013 P. 105- 108 //droneofark
This Article is about an area neglected in the recurrent collisions in worldviews over immigration reform—the need for crimmigration
reform. “Crimmigration” refers to the use of criminal sanctions to enforce civil immigration law and the increasing erosion of
boundaries between criminal and civil immigration law.18 This Article uses the term “crimmigration complex” in two senses, to
evoke both the prison-industrial complex, and the complex that distorts behavior in psychoanalytic theory. While the prison-industrial
complex refers to the convergence of bureaucratic, political, and private interests that benefit from incarceration spending, 19
“crimmigration complex” refers to the government agencies and private companies that grow and benefit from using criminal
sanctions to enforce civil immigration law. The term crimmigration complex is also meant to be evocative of the notion of a complex
in psychoanalytic theory, referring to how memory, emotions, perceptions, and wishes in tension can distort behavior.20 Competing
desires, fears, and inflamed perceptions fuel recurrent flare-ups of furor over immigration and resort to criminal sanctions to enforce
nominally civil immigration law. The crimmigration complex has swelled dramatically over the decades, fed by these recurrent
political flare-ups.21 Recurring clashes over alleged “amnesty for illegals” is a status competition between worldviews that blinds
both sides to the crimmigration investigation and surveillance problems that roused rising voter groups and created the impetus for
immigration reform.22 What galvanized the rising demographic of Hispanics and Asians—both voting citizens and noncitizens—are
problems with overbreadth in immigration investigation and criminalization.23 Overbreadth means casting the web of investigation
and incarceration too broadly, leading to concerns such as problematic targeting practices and wasteful spending that bloats the
crimmigration complex.24 Three major overbreadth problems include (1) investigating Americans of particular racial and ethnic
backgrounds as potential aliens, (2) spending extra millions to prosecute immigrants without criminal histories before civilly deporting
them, and (3) paying billions to confine immigrants who do not pose a flight or danger risk in a massively expanded civil incarceration
complex.25 Continuing to feed the ravenous crimmigration complex endangers values important to the worldviews on both sides of
the traditional immigration reform divide. To achieve crimmigration reform, it is crucial to argue in terms of interests and values that
appeal to people of competing worldviews. Focusing on impasse-bridging interests, the Article argues that power, demography, and
fiscal responsibility counsel for crimmigration reform. The Article proceeds in four parts. Part I discusses the split in worldviews that
generates recurrent cycles of failed immigration reform and the fierce focus on the most polarizing issue of alleged amnesty. The
conflict blinds reformers to other issues in need of attention. To progress, reformers need to focus on issues that endanger values
important to the main competing worldviews. This Article argues that crimmigration overbreadth is an issue that threatens values
important to both sides of the traditional divide. Part II argues that power and demography—specifically the need to woo increasingly
crucial Hispanic and Asian voters—counsel for attention to curbing crimmigration overbreadth. The Article uses the term
“crimmigration overbreadth” to refer to the broad structure of immigration criminalization designed to permit wide discretion over
which groups to target for surveillance, investigation and stigmatization. The Article discusses the historical genesis of overbreadth in
criminal immigration law from the nation’s earliest days in 1789. Tracing the history lays bare the ambition behind the overbreadth
strategy of conferring the flexibility and discretion to target groups perceived as undesirable because of national origin, ethnicity, or
race. The strategy is now backfiring, however, because demographic change has broken the bonds of law and generated the potential
to change the past paradigms.Part III argues that the interest of fiscal responsibility and curbing waste also counsel for curbing
crimmigration overbreadth. This part discusses the drain on crime prevention dollars because of the rise of the vast immigration
prosecution and incarceration complex. As recent bipartisan progress in reducing incarceration bloat and expense shows, arguments
about fiscal responsibility and preventing waste have the potential to build coalitions across traditional divides.26 Part IV of the
Article is about immigration criminalization and detention reform that addresses the overbreadth problems. Reform does not mean
abolition. Part of the challenge of breaking out of the endless loop of finger-pointing and standing still on immigration reform is
avoiding the accusation of radical abolition from one camp, and belief that there can be no progress without upending the current legal
regime from the other camp. Part IV proposes two alternative reforms to immigration criminalization and civil detention laws that
curb the worst of the waste and harmful consequences of immigration investigation and incarceration overbreadth. First, the Article
proposes that current laws criminalizing entering or being found in the United States require indicia of risk, such as significant
criminal history, in addition to mere alien status. Because alienage is still strongly associated with particular races or ethnicities,
having criminalization turn on alienage alone generates controversial racial profiling and investigation overbreadth problems.
Requiring more than mere alienage breaks the racial relevance rationale. Requiring indicia of risk also better directs expensive
prosecution and criminal processing resources to cases of greater concern rather than prosecuting only to deport, which could be
accomplished civilly. Second, the article proposes that the federal immigration detention system learn from the states that have turned
to more cost-effective alternatives to incarceration to cut costs and waste.
AT K – state link
Only the affirmatives combination of ethical knowledge production and
policy proposal can effectively challenge the status quo – abandoning
intervention with governmental bureaucracies ensure ineffectiveness
Keith 8 – PhD, Anthro chair at Oxford
(Michael, Public sociology? Between heroic immersion and critical distance: Personal reflections on academic engagement with
political life, csp.sagepub.com/content/28/3/320.full.pdf+html)
there is an academic function that might take as axiomatic the bureaucratic imperatives that
inform each of the subsections of the bureau (and each of the silos of local governance) and consider in turn the
knowledges that become useful at particular times. In social services (or more recently children’s services) departments, particular forms of sociology
In this sense
define families, children and elderly as ‘at risk’, actuarial calculations match resource rationing with local authority budgets to define eligibility criteria for the rationing of welfare state support. In the realm of
development control, particular notions of the good city are premised on the notion of functional land use zoning, rooted in a technocratic urbanism. The landlord function of council homes, housing associations and
new ‘arm’s length management organizations’ depend on both the calculus of expenditure and rental return and an assortment of normative figurations of the social world. Construction equations and refurbishment
costs that match build costs, ecological obligations, density potential and the offset of land costs and private sales that define the political economy of social housing are conflated with more ‘moral knowledges’ of
social mixing that prescribe mixed neighbourhoods as preferable to sink concentrations of new housing estates with 90% of tenants on housing benefit. And in the licensing of drinking, feasting and having a good
time the various regulatory regimes of local governance encode normative models of the 24 hour city, new consumer cultures and forms of work time/leisure time flexibility that sit just below the surface of
apparently mundane functions. For Weber the bureau is coded to reproduce the status quo, the politician the challenger of it. But if we are to understand the proper role of a ‘public sociology’ or the engagement of
the academy and public life then it is worth thinking through, in a little more detail, the ways in which we understand both the working of the former and the sorts of information that might be useful to the latter.
we need both the forms of technocratic knowledge that might make the
workings of the bureau transparent both to itself and to its public (to ensure for example the ‘fair’ working of
the rationing of the scarce resource of social housing in the allocation of new tenancies) and the forms of ethical knowledge that might
challenge the status quo itself (when for example new priorities emerge in the turbulence of city change and the ethical settlement of social form). To take just one
Crudely put
example: in the late 1990s an ageing demographic within the Bangladeshi community in Tower Hamlets prompted a number of activists to demand the provision of a facility that catered for Muslim needs of the
newly elderly. Supporting this strongly politically, colleagues and myself went through a painful process by which a partnership with a housing association (putatively ‘privatizing’ the service), a development deal on
a land site in my ward and – most fundamentally – the recognition of particular cultural rights were supported by some parts of the bureaucracy but opposed by others. Most vividly, David Davis, then shadow Home
Secretary denounced the proposals vigorously, leading to demands in the tabloid press that the facility be torn down. Importantly, a debate about welfare provision, a deal around the financially plausible and – most
significantly here – a debate about when the ‘separation’ of multicultural difference trumps the solidarities of integrated service delivery are conflated around a single development site. The site became the Sonali
Gardens Day Care Centre in Shadwell, won many awards and subsequently the support of even the Conservative Party at the local level. But hindsight is easy and the project might have fallen on many occasions.
However, the forms of knowledge in play, including a debate on a new moment in the local identity politics of recognition (of ‘Muslim needs’), a new eligibility subject position (both demographically in terms of the
Bangladeshi community and categorically in terms of ‘the Muslim elderly’) and a new form of service provision (combining the community sector with a housing association) all replay a particular choreography. In
this dance the old eligibility and priority criteria of a well run welfare system sit at odds with these contested measures of a new ethical settlement. In this particular instance it is not particularly helpful to label the
Change is
prompted by the political trumping of bureaucratic processes but rests on the implicit and sometimes explicit
knowledges that are sociological and ethical, routed through the imperatives of contemporary multiculturalism. Personal experience showed that wrongly
old ‘bureaucracy’ racist, any more than it was helpful to stigmatize the new form of provision in Sonali Gardens as a form of apartheid as some in the national tabloid press preferred.
presented they can result in both a personal denunciation from Davis’ office and a potential lawsuit (see for example http://iaindale.blogspot.com/2007/08/daviddavis- demands-labour-apology-over.html). Equally
the debate was crying out for an informed (and ‘knowledgeable’) understanding of the choices that must be made in balancing the politics of redistribution and the politics of recognition in today’s multicultural urban
understanding the tension between the
bureaucracy and the political imperative consequently illuminates both the value of the former
and its limits; the proper sense of the political as a notion of ‘ethics in public’ and its limits when
translated into the public arena of the tabloid press. Through this situated tension we might then also begin to
understand the sort of knowledge that might be performatively helpful in constituting a public
rather than one in which artefacts of academic production sit as ornaments in a ‘public sociology’.
On knowledges of the local and the economization of everyday life When the political can trump the bureaucratic in some
circumstances but not in others, this might lead us to think about the performative value of
different knowledges. We might also want to think carefully about the ways in which different knowledges themselves trump each other, how some disciplinary traditions at some times and
settings, and rethinking the balance between state and civil society in looking after the most vulnerable. So
places become more powerful than others in social policy contexts. And though it is a largely impressionistic suggestion, it appears to be the case that, in the British public realm, the political holy grail of economic
competence and the paradigmatic legacies of forms of rational choice and public choice theory lend economic expertise a performative value second to none. Whilst in the USA as much as in contemporary China the
sociological might inform the policy maker, the anthropologist inform the corporation, and both might provide knowledges for government; in the UK there appears a sense that economic knowledges are in some
ways the makers of a privileged realm of expertise (Balls, 2006; McClean and Jennings, 2006). In some ways we have witnessed the economization of everyday life, or at least an economization of its governance.
How do we understand both the growing general power of the discipline of economics and the particular privileging of economic reasoning in the public realm in Britain? There is a literature that considers the
relative merits of forms of economic knowledge in the structuring of social policy, and in particular the manner in which governments have taken their lead from the US property rights school to legitimize a
privileging of the economic over the legal in many realms of policy formation (Coase, 1960, 1992; Rutherford, 1996; Williamson, 1975, 1985). There is also a set of literatures around ‘governmentality’ that explains
the manner in which the calculable self can be related to the evolutions of structures of governance that take as their object ‘the conduct of conduct’ and at times there is a sense that such a calculus lends itself to a
cognitive notion of rational choice and utility optimizing behaviours that fits well with mainstream economic reasoning (Rose, 1999). These are related but distinct trends and there is no space to examine them in
detail here. However, matched with the growing power of the Treasury in setting the parameters of social policy intervention in the period from 1997 onwards, their influence in part explains the national trend for
‘evidence based policy’ to develop national mobilizations of academic knowledges that explain the central government predilection for policy reviews that are framed by the search for economically optimal policy
options. Adair Turner’s (2005) review of the funding of pensions, Nicholas Stern’s (2006) review on the economics of climate change (in which he described climate change as ‘market failure’,
http://www.guardian.co.uk/environment/2007/ nov/29/climate change.carbonemissions) and Kate Barker’s reviews of housing supply (2004) and the planning system (2006) are just a few of the many high profile
Treasury rooted examples of inquiries that structure public policy. The relationship between policy outcomes and the review process is contingent but what is shared is a sense that privileges both an economic mode
of analysis and economists’ expertise and analysis. If it is easy to condemn the discipli nary complicity of the economic, it might also be worth examining the disciplinary efficacy of the sociological if powerful and
persuasive calls for the social sciences to engage in a ‘public sociology’ (Burawoy, 2005) are to be taken seriously. The example of the way in which the British conceptualize the universal need for a home provides
an interesting case in point. The upturn in macroeconomic growth of the last fifteen years has been paralleled by an arguably unprecedented rate of sustained house price inflation in the UK. It was in this political
context that Kate Barker (2004), formerly a member of the Bank of England monetary policy committee, was asked to review land supply and its impact on the housing market. In an exemplary review, couched in
the vocabulary and the grammar of neoclassical economics, the supply constraints are identified and the shortage of homes in the UK is translated into a completely logical set of tabulations and graphics. To be clear,
It is rather to ask what sorts of ways of
imagining policy options are excluded from the mode of thinking and writing that the work is
premised upon. In part what is clear is the absence of a sympathetic ethnographic sense of how the bureau works, planning decisions are made and are (at times) politicized; an unspoken sense of
it is not the purpose of this article to provide a critique of Barker, regardless of the validity of her logic and conclusions.
what it might mean to build communities as well as building units of housing; and a silence about the ways in which cultural forms of race, gender, sexua lity, lifestyle and age preference are continually
reconfiguring what it means to dwell as well as to reside in the city.
And this does impact on the ways in which policy imperatives are
then translated into the modes, regimes and regulation of programmes of city change, urban renewal and regeneration. In a sense
these dilemmas are most vividly brought together in trying to understand the ‘meta-politics’ of the growth of the Thames Gateway, to the east of London. Once associated with the badging of a major tract of postindustrial land as an opportunity for ‘urban regeneration’ with origins more in Sir Peter Hall’s geographical imaginary than in any other academic discipline, the reputation of this scheme was seriously dented in 2007
by a highly critical report of the Public Accounts Committee, linked to a National Audit Office inquiry into the success of the scheme (NAO, 2007; PAC, 2007). Succinctly put, the scale of the Gateway ambition is
consequent on not just the analytical logic that informs the appropriate and potential land use functions of a particular ‘brownfield’ tract of land. In an economic vocabulary, the Thames Gateway becomes a territory
whose regeneration has a price (that might be calculated) and whose capacity can be defined teleologically in terms of numbers of putative homes and potential jobs. A calculus that appeals to the ratio between
investment inputs and regeneration outputs can thus generate a sense of the value for money of the Gateway; the extent to which public sector expenditure might be justified here rather than in other ‘growth areas’
that warrant alternative public sector investment sits in an opportunity cost relation to the Gateway itself. In part this is understandable. The sense that public investment should be rational, its opportunity costs
transparent and the externalities of investment made visible are all entirely laudable goals. But as a consequence, the territorialization of social policy is not inflected by the disciplines of the built environment that
address the lessons learnt in building new communities, the imperatives of governance and the recognition of cultural difference. Sites in the Gateway must justify public investment against criteria principally
structured by their ability to contribute to the entirely laudable social goal of building three million new homes to address the housing shortage. And neither do they address the more contentious, complex and
controversial elements of social engineering that will determine how many of those homes would be bought for sale outright, private rental or in some of many senses will be made ‘affordable’ through the
So what is the alternative to this? In part the answer is about a more
detailed critique of the forms of governance imperatives that become received wisdom. But
equally there is a demand for more populist, more visionary, more credentialized forms of public
sociology that make problematic both the sorts of social form that emerge through major
programmes of regeneration and the ways in which the economic calculus might be understood
otherwise in analytically strong models of congregation and the public realm that address the
‘externalities’ of social polarization, exclusion and intolerance. Detailed ethnography might teach us to be sceptical about the voices that are
deployment of public subsidy in generating new ‘social housing’.
heard – both in the corridors of power and in the debates about expanding new settlement that might think backwards about decades of experience in building the city beautiful and more contemporary reflections on
This demands a more aggressive
publicization of forms of sociological intervention that engage critically with structures of power
but also offer technocratically a sense of academic expertise and knowledge production that is
savvy about the ways in which the levers of local governance and Wacquant’s derided bureaucracies
the cultural forms that emerge in new towns that determine whether places are socially (as well as ecologically and economically) sustainable.
actually work.
Link turn – policy illusion is a tool not a trap
Shove & Walker 7 - *Sociology @ Lancaster, **Geography @ Lancaster
(Elizabeth “CAUTION! Transitions ahead: politics, practice, and sustainable transition management” Environment and Planning C 39
(4))//BB
For academic readers, our commentary argues for loosening the intellectual grip of ‘innovation studies’, for backing off from the
nested, hierarchical multi-level model as the only model in town, and for exploring other social scientific, but also systemic theories of
change. The more we think about the politics and practicalities of reflexive transition management, the more
complex the process appears: for a policy audience, our words of caution could be read as an invitation to abandon the whole
endeavour. If agency, predictability and legitimacy are as limited as we’ve suggested, this might be the only sensible
conclusion.However, we are with Rip (2006) in recognising the value, productivity and everyday necessity of an
‘illusion of agency’ , and of the working expectation that a difference can be made even in the
face of so much evidence to the contrary. The outcomes of actions are unknowable, the system
unsteerable and the effects of deliberate intervention inherently unpredictable and, ironically, it is
this that sustains concepts of agency and management. As Rip argues ‘ illusions are productive
because they motivate action and repair work, and thus something (whatever) is achieved’ (Rip 2006:
94). Situated inside the systems they seek to influence, governance actors – and actors of other
kinds as well - are part of the dynamics of change : even if they cannot steer from the
outside they are necessary to processes within . This is, of course, also true of academic life. Here
we are, busy critiquing and analysing transition management in the expectation that somebody somewhere is
listening and maybe even taking notice. If we removed that illusion would we bother writing
anything at all? Maybe we need such fictions to keep us going , and maybe – fiction or no somewhere along the line something really does happen , but not in ways that we can anticipate or know.
AT K - Wilderson
Their argument isn’t afropessimism, but absolutist despair—their facile
antihumanism doesn’t chart us a path towards the end of the world, but
instead limits us to total resignation
Marriott 12
[David Mariott, “Black Cultural Studies”, Years Work Crit Cult Theory (2012) 20 (1): 37-66]
In the concluding pages of Darker Than Blue, Gilroy restates why he finds the ongoing attachment to the idea of race in the US so
very unsatisfactory in comparison, say, to the anti-racism of Frantz Fanon: [Fanon’s] ‘audacious commitment to an
alternative conception of humanity reconstituted outside ‘‘race’’ [...] is something that does not
endear Fanon’s work to today’s practitioners of the facile antihumanism and ethnic
absolutism so characteristic of life on US college campuses, where class-based homogeneity
combines smoothly with deference to racial and ethic particularity and with resignation to the
world as it appears . Fanon disappoints that scholastic constituency by refusing to see culture
as an insurmountable obstacle between groups, even if they have been racialized. He does not accept the
‘‘strategic’’ award of an essential innocence to the oppressed and the wretched of the
earth. Their past and present sufferings confer no special nobility upon them and are not invested with redemptive insights.
Suffering is just suffering , and Fanon has no patience with those who would invoke the
armour of incorrigibility around national liberation struggles or minority cultures’. (pp. 157–8, my
emphasis) Whatever one might think of the cogency of these remarks (if only because the notion of a non-racial life is predicated on
the idea that the human can somehow reside ‘outside’ of race, a humanism that would always then be constitutively compromised by
the racism at its frontier), the question of whether US culture can ever escape racial antagonism is the
primary focus of Frank B. Wilderson III’s powerful Red, White, and Black: Cinema and the Structure of US Antagonisms,
as part of a more general reading of US film culture. And indeed Fanon’s anti-philosophical philosophical critique
of racial ontology (historically blacks were seen as part of existence but not, as yet, part of human being, a not-yet that forces
Fanon to rethink the teleological form of the human as already and essentially violent in its separation from the state of nature from
which it has come) forms a major part of Wilderson’s conception of anti-blackness as the major
structural antagonism of US history and culture. It is against the conception that racism could ever be
simply contingent to black experience that Wilderson protests, reflecting on the fact that racial
slavery has no parallel to other forms of suffering, and perhaps most strikingly social death is the
constitutive essence of black existence in the US. In brief, slavery remains so originary, in the sense of
what he calls its ‘accumulation and fungibility’ (terms borrowed from Saidiya Hartman), it not only has no ‘analogy’ to
other forms of antagonism— Wilderson’s examples are the Holocaust and Native American genocide— there is simply
no process of getting over it, of recovering from the loss (as wound, or trauma): as such, slavery remains
the ultimate structure of antagonism in the US. Whether at a personal level or at the level of historical process, if
‘black slavery is foundational to modern Humanism’, then any teleological appeal to a humanism beyond racism is doomed from the
start (p. 22). The
problem with Wilderson’s argument, however, is that it remains of a piece with
the manichean imperatives that beset it , and which by definition are structurally
uppermost, which means that he can only confirm those imperatives as absolutes rather
than chart a dialectical path beyond them , insofar as, structurally speaking, there is no ‘outside’ to
black social death and alienation, or no outside to this outside, and all that thought can do is
mirror its own enslavement by race. This is not so much ‘afro-pessimism’— a term coined by Wilderson—
as thought wedded to its own despair .
Afro-pessimism’s positing of the black subject as existing in a state of total
objectification suffocates black transgression and resistance, preventing us
from thinking the individual dimension of politics in any coherent way and
thus robbing us of the ability to cultivate everyday energy towards
revolutionary struggle in the interim between this round and “burning it all
down”
Allen 2011 [Jafari S., Assistant Professor of African American Studies and Anthropology at Yale University, ¡Venceremos?:
The Erotics of Black Self-making in Cuba, p. 82-83]
For black folks, resistance always takes place in a field already constrained by the lingering question of black abjection with respect to subjecthood. Frank Wilderson in his fine
polemic “Gramsci’s Black Marx: Whither the Slave in Civil Society?” (2003) argues that blacks “impose a radical incoherence” upon the assumptive logic of a subject constructed
through its relation to labor exploitation. Wilderson’s thesis that “the Black subject reveals Marxism’s inability to think White supremacy as the base” (n.p.) resonated with
Cedrick Robinson’s Black Marxism (2000), which carefully details historical and philosophical (dis)articulations of black(ness and) Marxism. Wilderson points out that if we
follow Antonio Gramsci’s expansion of Marx, depending on civil society as the site of struggle (i.e., “war of position”) we reify racial terror, since for black subjects civil society
is the site of recurrent racial terror. Where I have to depart from Wilderson is in his contention that the black subject is thus in a position of
“total objectification… in contradistinction to human possibility, however slim,” required for a war of position (2003: n.p.; emphasis mine). Wilderson finds
the black subject in a “structurally impossible position.” I must argue, following bell hook’s use of Paolo Freire, however, that “we cannot enter the struggle as objects in order to
later become subjects” (1989: 29). Part of my friendly disagreement with Wilderson is ontological, or, I readily admit, spiritual. Unlike positions that deny notions of
a
deep psychic self, I want to affirm the inherence of inalienable innate human dignity, and what I might gloss here as “spirit,” which is
offended not only by force but by any extrinsic practice that threatens the individual’s sense of personhood . On another score, Wilderson’s
“stress on objective contradictions, ‘impersonal structures’ and processes that work ‘behind men’s backs,’” as Stuart Hall describes the
conventional culture and discourses of the left, “disable[s] us from confronting the subjective dimension in politics in any coherent way” (Hall,
Morley, and Chen 1996: 226). Thus, in some ways Wilderson takes us back to the “old” Marx that Gramsci, Hall, and others attempted to rethink
apropos of our new times, even as he points out the limits of Gramsci to contend with these social and historical facts of blackness. This orientation leaves no air
for black transgression or resistance outside of “the final solution.” In the interim, however, what will condition, reeducate and raise
consciousness towards revolution?
Incarceration as punishment and violence are inseparable- the prison system
normalizes dehumanization into rational structures
Rodriguez ’06 [2006, ,Dylan Rodríguez is Professor and Chair of the Department of Ethnic Studies at UC Riverside. He
received his Ph.D. and M.A. degrees in Ethnic Studies from the University of California, Berkeley (2001), and earned two B.A.
degrees and a Concentration degree from Cornell University (1995). “Forced Passages Imprisoned Radical Intellectuals and the U.S.
Prison Regime” ]
It is the set of relations entangled in the regime of imprisonment that foregrounds the prison as a
mode of social organization. This particular embodiment of state power resonates through
historically speciWc enactments of punitive carcerality, entangling structures of human capture
with modalities of bodily violence. Importantly, it is this symbiosis between punishment and
incarceration—discrete terms often conflated in popular, academic, and state discourses—that
constructs and naturalizes the practice of imprisonment. Imprisoned activist and political theorist D. A. Sheldon
disrupts this mystiWcation, speaking to the embodied relations that condition and reproduce a structure of dehumanization:
Correspondent to this technology of subjection and existential evisceration is the state-contrived
Wgure of the “inmate,” a spectacle of conjecture that signiWes the anxious and shadowy
projection of the prison regime’s productive incapacity to actually dehumanize. Dehumanization,
in other words, is a constitutive logic of the regime, a modality of its domination and dominion,
not its deWnitive or empirical outcome. Sheldon tells us that it is precisely the irreconcilable
presence and persistence of the captive abject human (as opposed to the “inmate” inhuman or subhuman) that
embeds crisis bodies within the self-production and narration of the prison’s institutional
coherence The production of the prison regime composes a statecraft of intimidation, invasion, and
extinction, as the institutional identity of the prison pivots on the state’s rendering of captured
bodies as infintely fungible objects, available for whimsical and gratuitous productions of bodily
and psychic violence, while presumed always already “dangerous” and criminally disobedient.
State captives pass into a condition beyond any normative sense of bodily or psychic integrity: their categorical status as the
unfree manifests in a normalized production and organization of (spectacles of ) human suffering.
Punitive carcerality, in this manner, enacts as social allegory, communicating ideas, commitments, borders, and limits
ARTICULATING WAR(S) – 149 through (sometimes stunningly public) rituals of dehumanization—free people (the nonimprisoned)
are to learn from, take pleasure in, and obsess over the spectacle of state authority in its moments of inscription. The brilliance of
Sheldon’s critique is its analytic depiction of state punishment as drab routine, invented through and situated in a coercive, multiscaled
set of relationships between the designated human stand-ins for “the state” (administrators, policy makers, and guards, hence the
architects and practitioners of state power) and those enWgured by the state as virtual and juridical nonpeople. “Inmate,” as a
philosophical construction of this embodied state power, emblematizes a structure of nonbeing: according to Sheldon, the “breaking”
of the imprisoned entails the death of the human—the repression or coerced absence of will and independent thinking—and the
production of a life in terror (to live under the “fear of God”). This structure of imprisonment, however, is
structured by the captive’s structurally inevitable disobedience—it relies on the necessarily
unattainable institutional imperative that the captive become an inmate. Will, emotion, expression,
speech, and movement constitute permanent threats to the prison’s coerced order—as such, the
specters of sudden mutiny, mimetic reversals in the power relations of the prison, hover beneath
the formal rationality of the state’s bare authority. The regime’s ofWcial Wgures of force and authority persistently,
obsessively urge one another to remain vigilant against those prisoners who refuse to act like inmates. At times, this fraternal
discourse of domination and premeditated violence takes form as off-the-cuff psychomilitary diagnosis. Correctional ofWcer J.
McGhee-King of Pleasant Valley State Prison (California), writing in Peacekeeper (the monthly publication of the California
Correctional Peace OfWcers Association), contrives a hackneyed deWnition and clinical categorization of the captive “maladaptive
manipulator.” In a subtle, though nonetheless bizarre, construction of the collective Wguration of the prison guard, McGheeKing’s
article (“The Many Moods of Manipulation”) voices the veneered rationality of an otherwise exceedingly violent formation of state
rule and dominion:
Imprisonment forms the medium through which the black-white antagonism
has been maintained since the middle passage
Rodriguez ’06 [2006, ,Dylan Rodríguez is Professor and Chair of the Department of Ethnic Studies at UC Riverside. He
received his Ph.D. and M.A. degrees in Ethnic Studies from the University of California, Berkeley (2001), and earned two B.A.
degrees and a Concentration degree from Cornell University (1995). “Forced Passages Imprisoned Radical Intellectuals and the U.S.
Prison Regime” ]
Tracing the contemporary prison regime’s points of origin to the juridical and material developments of the post–Civil War South, in
particular to its twinned and mutually constituting crises of economic modernization and managing/controlling a suddenly
nominally “free” black population, is essential for a radical genealogy of the U.S. prison. To the
extent that “the post–Civil War southern system of convict lease . . . transferred symbolically signiWcant numbers of black people
from the prison of slavery to the slavery of prison,” the formation of the U.S. prison must be seen as inseparable
from the relation of white freedom/ black unfreedom, white ownership/black fungibility, that
produced the nation’s foundational property relation as well an essential component (with Native
American displacement and genocide) of its racial ordering.3 In fact, the prison can be understood through this
genealogy as one of the primary productive components of the U.S. nation-state’s internal
coherence—via the production of white-supremacist hegemony through black bodily
immobilization and punishment (and modernist 226 – FORCED PASSAGES expansiveness) as the prison
replaced the “irrational” horrors of chattel slavery with the juridical “rationality” of the prison. I am
interested in stretching both the historical reach and the conceptual boundaries of this genealogical tracing. There are always
and necessarily movements and passages between the (linked) temporalities and geographies of
death, such as those of the slave plantation and postEmancipation prison, but the contemporary
case of the prison regime constitutes a site and condition of death that is itself a form of passage.
This is to say that the prison is less a “destination” point for “the duly convicted” than a point of
massive human departure—from civil society, the free world, and the mesh of affective social
bonds and relations that produce varieties of “human” family and community. Hence labor
exploitation, the construction of unfree labor (what some have loosely called a “new slavery”), and the mass
conWnement of a reserve labor pool are not the constitutive logics of the new prison regime, although these
are certainly factors that shape the prison’s institutional structure.4 Whereas forced labor (formal prison
slavery) was at one time conceived as the primary institutional tool for rehabilitating imprisoned white men, the proliferation of
mass incarceration in the current era has complexly reinscribed a logic of extermination, invoking
the rhetoric of “genocide” of imprisoned black-liberationist Tashiri Askari and formerly imprisoned community
organizer Dorsey Nunn (among others).”5 Sharon Patricia Holland’s meditations on the entanglement—in fact, the veritable
inseparability—of death and black subjectivity indicts the very formation of a white Americana and
its
accompanying social imaginary vis-à-vis the never-ending presence (and imminence) of racial
chattel slavery: It is possible to make at least two broad contentions here: a) that the (white)
culture’s dependence on the nonhuman status of its black subjects was never measured by the
ability of whites to produce a “social heritage”; instead, it rested on the status of the black as a
nonentity; and b) that the transmutation from enslaved to freed subject never quite occurred at the
level of the imagination.6 I would add that, indeed, what has occurred is an inscription of the black
nonhuman “nonentity” through the category of the imprisoned—hence
illegal/extralegal/convict—subject: although the white social imagination has been unable to
assimilate the notion of a “freed (black) subject” in its midst beyond cynical or piecemeal
gestures of “inclusion” (which is to say, ultimately, that it cannot assimilate blackness at all), the actual
“transmutation” has been from the white social imagination of the slave to that of the (black)
prisoner, or what Frank Wilderson III theorizes as the new black “prison slave.”7 The status of the
enslaved/imprisoned black subject forms the template through which white Americana constructs
a communion of historical interest, mobilizations of political force, and, more speciWcally, the
production and proliferation of a regime of mass-based human immobilization. My theoretical centering
of black unfreedom here is not intended to minimize or understate the empirical presence of “nonblack” Third World, indigenous, or
even white bodies in these current sites of state captivity, but rather to argue that the technology of the prison regime—
and the varieties of violence it wages against those it holds captive—is premised on a particular
white-supremacist module or prototype that is, in fact, rooted in the history of slavery and the
social/ racial crisis that it has forwarded into the present The structured violence of self-alienation, which
drastically compounds the effect of formal social alienation, is at the heart of the regime’s punitive logic. Yet, it is precisely because
the reproduction of the regime relies on its own incapacity to decisively “dehumanize” its captives en masse (hence the persistence of
institutional measures that pivot on the presumption and projection of the “inmate’s” embodiment of disobedience, resistance, and
insurrection) that it generates a philosophy of the captive body that reinscribes and ampliWes the (racial) logic of enslavement. This is
why the regime’s logic of power must reach into the arsenal of a historical apparatus that was an essential element of the global
formation of racial chattel slavery while simultaneously structuring its own particular technology of violence and bodily domination.
What, then, is the materiality of the archetypal imprisoned body (and subject) through which the contemporary prison regime has
proliferated its diverse and hierarchically organized technologies of immobilization and bodily disintegration?
AT K – Wilderson – perm
The perm solves – the affirmative is an interrogation of the USFGs racist
approach towards the justice system by abolishing mandatory minimums that
have unfairly targeted the black body and confronting modern prison
industrial complex.
Nixon et al. 8, (Vivian, Bachelor of Science degree from the State University of New York Empire College, peer educator in
the adult basic education program at Albion State Correctional Facility in New York, awards including the John Jay Medal for Justice,
the Ascend Fellowship at the Aspen Institute, the Soros Justice Fellowship, the Petra Foundation Fellowship, cofounder of the
Education Inside Out Coalition (EIO) “Life Capacity Beyond Reentry: A Critical Examination of Racism and Prisoner Reentry
Reform in the U.S.”
First, we are concerned that we are facing a future hopelessly mired in the system of criminal justice,
with its historical legacies of racism, civil death, and perpetual punishment that make criminal
justice more aptly defined as a system of criminal punishment. Second, we fear that with reentry, we are
entering a new phase of institutionalization of the criminal justice system, with the increasing
likelihood of extension of the carceral system of punishment and control beyond prison walls.
Third, we sense a new form of racism tied to the institutionalization of reentry, one that devalues
populations with practices that continually target and mark them as objects for surveillance,
control, and life management beyond the prison. What we are calling population racism is intensifying, if not
transforming, the [End Page 22] racism that has been characteristic of the disciplining and punishing of individuals under the
supervision of the criminal justice system.∂ Virtually all current policies and programming for reforming
the
criminal justice system through reentry fail to critically engage the racializing structures
informing and being informed by mass incarceration. The mainstream assumption that we live in a mulitcultural,
“post-civil rights” or “colorblind” society has blinded even many reformers to the enduring forms of “white” privilege represented so
starkly in the mass incarceration of African Americans, people of color, and immigrants, as well as in the forms of control—the
management of life capacity for these populations—that presently shape reentry reform of the criminal justice system. It seems
urgent for us to inquire into the way racism is informing reentry, making it a new institution for imprisoning
beyond the prison.7∂ Racism, Mass Incarceration, and Reentry Reform∂ Criminal justice professionals often now
recognize that the dehumanization of people of color, mostly African Americans, by marking
them as criminal, has become a normal part of the way “justice” is done in the United States. The
statistical data that are circulated to support this claim increasingly are used to call for reform of criminal justice policy, to rethink
mass incarceration as the primary means of dealing with those communities that have become defined by nothing so much as their
people being over-represented in the prison population. The circulation of data that once meant to tell of the necessity and rightness of
mass incarcerating, now point to mass incarceration as a failed criminal justice policy in need of reform. ∂ So when criminal justice
professionals now report that the United States allocates more than $35 billion annually to exile and penalize men and women, mostly
African Americans,8 that the electorate has supported policies that include mandatory minimum sentences that nullify judicial
discretion, that prosecutorial power has been expanded to support the adult prosecution of juveniles, that there has been an elimination
of parole, an increase in the public humiliation of selected defendants, and a reinstitution of the death penalty in numerous states, they
do so with dismay. Still, with just over 5 percent of the world’s population, the United States presently holds 24 percent of the world’s
prisoners,9 including one in three of all female prisoners. Of the 2.1 million men and women in U.S. jails and prisons at the end of
2003, 44 percent were African Americans,10 though African Americans comprised only 12.3 percent of the U.S. population.11 Black
males12 have a 32 percent chance of serving time in prison at some point in their lives; Hispanic [End Page 23] males have a 17
percent chance; and white males have a 6 percent chance.13 Women of color are the fastest-growing prison demographic, having
increased by more than 400 percent since 1977.14∂ Statistics like these have for some time shaped the future in establishing the
probability of African American men and women, and men and women of color, becoming incarcerated. They also point to the past, to
the drug laws of the early 1970s that were designed to punish with mandatory prison terms those
who possess crack cocaine (used in the black community), while penalties for possession of the
powder form (used by middle- and upper-class whites) usually take the form of monetary fines
and do not include mandatory prison sentences. They point as well to the supporting, or, better, provoking rhetoric,
most memorable perhaps in the emotion-laden tirades turned into media-ads that were part of the “tough-on-crime platform” of
presidential campaigns. The laws, the rhetoric, and the statistics made “urban ghetto” a label for a “sick” and “dangerous” community
where blacks (the public face of criminals) resided. Being black was made equivalent in the public eye with being criminal, so that
being convicted of a crime and sentenced to imprisonment has meant being devalued by association with blackness, becoming
subjects of the racializing effects of mass incarceration.∂ With mass incarceration, the racial divide has deepened.
For some, prison has become a replacement for state welfare and a way of avoiding the treatment of problems such as homeless-ness,
drug abuse, mental illness, illiteracy, and poverty as social problems. Others, who are hypnotized by the sensationalized version of
crime and justice depicted in the media,
have been caught in a cycle of misperceptions of and reactionary
responses to those being criminalized and incarcerated. While the latter group seem assured that
to be against crime is not to be racist, experience tells others that just being caught up in the
criminal justice system is tantamount to being devalued in a racialized way.∂ There are those who feel that
criminals breach the social contract and should be punished without taking into account the history of racism that conditions the
probabilities of committing crimes and shapes the way crimes are punished. There are those who find it difficult to
grasp how they can be held accountable—not for crimes they may have committed—but to a
society that has not held itself accountable for racist institutions from slavery to mass
incarceration. For them, the U.S. practice of mass imprisonment is closer to a new-age slavery,
unrecognizable as a system of justice. For them, the violence of mass incarceration is the norm of
the justice system, a norm based on prevailing racist policies of the U.S. state with its historical
ties to the institutions of slavery, reconstruction, and ghettoization.15
The Perm solves and the alt fails – Even if the USFG has been historically
racist, some level of racism in education is inevitable - it is critical not to bind
ourselves to the ivory tower of high theory – discussion over social policies
and civic engagement is crucial, especially within the criminal justice system
Nixon et al. 8, (Vivian, Bachelor of Science degree from the State University of New York Empire College, peer educator in
the adult basic education program at Albion State Correctional Facility in New York, awards including the John Jay Medal for Justice,
the Ascend Fellowship at the Aspen Institute, the Soros Justice Fellowship, the Petra Foundation Fellowship, cofounder of the
Education Inside Out Coalition (EIO) “Life Capacity Beyond Reentry: A Critical Examination of Racism and Prisoner Reentry
Reform in the U.S.”
Hence, while formal higher education seems essential, even the most cursory review of education
programs suggests that not every kind of education accomplishes, or is intended to accomplish,
critical learning; nor is education, itself, free from racist practices. It is essential to enhance higher
education with opportunities for leadership, creativity, and self-organizing. Supporting such goals
along with higher education is especially a concern because very many of the formerly incarcerated who go
on to pursue postgraduate and professional degrees do so in the fields of social work and social services. In our experience,
education for social service and social work often encourages aligning with the norms of society
as well as with a reentry programming shaped by the criminal justice system; what is not achieved is a critical
engagement of the racism of mass incarceration.∂ If many of us who live with criminal convictions continue to assume work in the
social services and reentry fields, we must be cautious in believing that higher education alone is sufficient
for transforming the criminal justice system and the racist causes and effects of mass
incarceration. Our experience with our education since release from prison and with the ways higher education transformed
prisons and prison populations in the previous decades, indicates that coupled with education, there must be structures of
opportunity established for ongoing learning in leadership development and civic participation as
well as support for our organizing so that we are enabled to take up a transformative engagement
with the criminal justice system and social service status quo and their racist practices. This is a
matter of ensuring our self-determined participation in [End Page 37] research, planning, and programming for social change ,
especially in relationship to the racism of mass incarceration. Our hope is that prisoners-inreentry will not only be a population to be studied, assessed, evaluated, and managed, but will be listened to, followed,
and promoted. It has been our experience that the powerful knowledge of those living with criminal convictions has not been
engaged in a systematic way. And so it has been hard to put to use that which we have learned from our education and now from
working within the field of, and with various agencies concerned with, reentry. Our situations have quickly shattered any illusion that
reentry programs are contributing to any substantive change. We know and we have experienced enormous resistance to our
participation. Often we are stigmatized even by those with whom we work in reentry programming; at best we are treated as tokens
when working in such organizations. It is one thing to acknowledge intellectually that a system based on
punishment and retribution when applied disproportionately to African Americans and people of
color only subjugates and destroys them and therefore should go. It is another thing when those
who argue that the system should go must surrender their own power, their own status, their
advantage. Yet this is the kind of change that is necessary.∂ This is why autonomous self-organizing is necessary: it makes it
possible to ensure the pressure to challenge the status quo and gives directly affected leaders the backing needed in their efforts to
bring about change. We also think that we are living in a historic moment that makes the success of
such organizing more probable. By this we mean that reentry has made those of us who have been imagined by criminal
justice professionals as “coming back” and as “staying out,” a population of prisoners-in-reentry. We have criticized the potential of
this designation to produce practices of imprisoning outside prison to those who have been in prison as well as others, including
African Americans, people of color, and immigrants who have not been imprisoned but who are continuously under surveillance and
controlled as potentially criminal. But we also want to underscore the potential for change in this
designation. We know the possibility of our taking back to ourselves the designation of prisoners-in-reentry so that we become a
population-for-itself. This is not a matter of being separated from the larger society but a one of calling
upon ourselves to articulate to the larger society the social, economic, and political conditions of
the racism of mass incarceration and reentry reform.∂ We are coming to understand more fully for
ourselves and others, the specificity of the racism that has been both cause and effect of mass
incarceration, particularly in making clear the way in which those living with criminal convictions are at the leading edge of
expanded practices of surveillance and control of those merely suspected of criminality. As we move into [End Page 38] civic
leadership, policy advocacy, and community organizing, those of us who have experienced prison and reentry
stigmatization begin to view the power of policy change, legislative reform, and community-building
more critically and on a more subjective level. That is to say, we begin to sense for ourselves the
transformative power of collective social and political change as we feel an internal desire for a
new kind of governing for all.
AT K – Wilderson – Omi
Racial progress has occurred though legal change and more in the area of
drug laws is still possible---reject pessimism because it ignores specific
reforms that achieved lasting reductions in racial inequality
Michael Omi 13, and Howard Winant, Resistance is futile?: a response to Feagin and Elias, Ethnic and Racial Studies Volume
36, Issue 6, p. 961-973, 2013 Special Issue: Symposium - Rethinking Racial Formation Theory
In Feagin and Elias's account, white
racist rule in the USA appears unalterable and permanent. There is little sense
that the ‘white racial frame’ evoked by systemic racism theory changes in significant ways over historical time. They dismiss important
rearrangements and reforms as merely ‘a distraction from more ingrained structural
oppressions and deep lying inequalities that continue to define US society’ (Feagin and Elias 2012, p. 21). Feagin and Elias use a
concept they call ‘surface flexibility’ to argue that white elites frame racial realities in ways that suggest change, but are merely engineered to reinforce
the underlying structure of racial oppression. Feagin and Elias say the phrase ‘racial democracy’ is an oxymoron – a word defined in the dictionary as a
figure of speech that combines contradictory terms. If they mean the USA is a contradictory and incomplete democracy in respect to race and racism
we disagree . The USA is a
racially despotic country in many ways, but in our view it is also in many respects a racial democracy, capable of
being influenced towards more or less inclusive and redistributive economic policies , social policies, or for
issues, we agree. If they mean that people of colour have no democratic rights or political power in the USA,
that matter, imperial policies. What is distinctive about our own epoch in the USA (post-Second World War to the present) with respect to race and
racism? ¶ Over the past decades there has been a steady drumbeat of efforts to contain and neutralize civil rights, to restrict racial democracy, and to
maintain or even increase racial inequality. Racial disparities in different institutional sites – employment, health, education – persist and in many cases
have increased. Indeed, the post-2008 period has seen a dramatic increase in racial inequality. The subprime home mortgage crisis, for example, was a
major racial event. Black and brown people were disproportionately affected by predatory lending practices; many lost their homes as a result; race-based
It would be easy to conclude, as Feagin and Elias do, that white racial
dominance has been continuous and unchanging throughout US history . But such a
perspective misses the dramatic twists and turns in racial politics that have occurred since the
Second World War and the civil rights era.¶ Feagin and Elias claim that we overly inflate the
significance of the changes wrought by the civil rights movement, and that we ‘overlook the serious
reversals of racial justice and persistence of huge racial inequalities’ (Feagin and Elias 2012, p. 21) that followed
wealth disparities widened tremendously.
in its wake.
We do not . In Racial Formation we wrote about ‘racial reaction’ in a chapter of that name, and elsewhere in the book as well. Feagin
While we argue that the right
wing was able to ‘rearticulate’ race and racism issues to roll back some of the gains of the civil
rights movement, we also believe that there are limits to what the right could achieve in the postcivil rights political landscape.¶ So we agree that the present prospects for racial justice are demoralizing
at best. But we do not think that is the whole story. US racial conditions have changed over the
post-Second World War period, in ways that Feagin and Elias tend to downplay or neglect. Some of the major reforms of the
1960s have proved irreversible ; they have set powerful democratic forces in motion .
and Elias devote little attention to our arguments there; perhaps because they are in substantial agreement with us.
These racial (trans)formations were the results of unprecedented political mobilizations, led by the black movement, but not confined to blacks alone.
Consider the desegregation
of the armed forces, as well as key civil rights movement victories of the 1960s: the Voting
Rights Act, the Immigration and Naturalization Act (Hart- Celler), as well as important court decisions like Loving v.
Virginia that declared anti-miscegenation laws unconstitutional. While we have the greatest respect for the late
Derrick Bell, we do not believe that his ‘interest convergence hypothesis’ effectively explains all these developments. How does Lyndon Johnson's
famous (and possibly apocryphal) lament upon signing the Civil Rights Act on 2 July 1964 – ‘We have lost the South for a generation’ – count as
has been transformed in significant ways
‘convergence’?¶ The US racial regime
. As Antonio Gramsci
argues, hegemony proceeds through the incorporation of opposition (Gramsci 1971, p. 182). The civil rights reforms can be seen as a classic example of
this process; here the US racial regime – under movement pressure – was exercising its hegemony. But Gramsci insists that such reforms – which he calls
‘passive revolutions’ – cannot be merely symbolic if they are to be effective: oppositions must win real gains in the process. Once again, we are in the
if partial victories that shifted the racial state
and transformed the significance of race in everyday life. And yes, we think that further victories can
take place both on the broad terrain of the state and on the more immediate level of social interaction: in daily interaction,
in the human psyche and across civil society . Indeed we have argued that in many ways the most important
realm of politics, not absolute rule. ¶ So yes, we think there were important
accomplishment of the anti-racist movement of the 1960s in the USA was the politicization of the social. In the USA
and indeed around the globe, race-based movements demanded not only the inclusion of racially defined
‘others’ and the democratization of structurally racist societies, but also the recognition and
validation by both the state and civil society of racially-defined experience and identity.
These demands broadened and deepened democracy itself. They facilitated not only the
democratic gains made in the USA by the black movement and its allies, but also the political advances towards
equality, social justice and inclusion accomplished by other ‘new social movements’: second-wave feminism, gay liberation, and the environmentalist
By no means do we think that the post-war movement upsurge was
an unmitigated success. Far from it: all the new social movements were subject to the same ‘rearticulation’ (Laclau and Mouffe 2001, p. xii)
and anti-war movements among others.¶
that produced the racial ideology of ‘colourblindness’ and its variants; indeed all these movements confronted their mirror images in the mobilizations
that arose from the political right to counter them. Yet even their incorporation and containment, even their confrontations with the various ‘backlash’
phenomena of the past few decades, even
the need to develop the highly contradictory ideology of
‘colourblindness’, reveal the transformative character of the ‘politicization of the social’. While it is not possible
here to explore so extensive a subject, it is worth noting that it was the long-delayed eruption of racial subjectivity and self-awareness into the mainstream
political arena that set off this transformation, shaping both the democratic and anti-democratic social movements that are evident in US politics today. ¶
What are the political implications of contemporary racial trends?¶ Feagin and Elias's use
of racial categories can be imprecise.
This is not their problem alone; anyone writing about race and racism needs to frame terms with care
and precision, and we undoubtedly get fuzzy too from time to time. The absence of a careful
approach leads to ‘ racial lumping’ and essentialisms of various kinds. This imprecision is
heightened in polemic . In the Feagin and Elias essay the term ‘whites’ at times refers to all whites,
white elites, ‘dominant white actors’ and very exceptionally, anti-racist whites, a category in which we
presume they would place themselves. Although the terms ‘black’, ‘African American’ and ‘Latino’ appear, the term ‘people of colour’ is emphasized,
it is important not to frame race in a
bipolar manner . The black/white paradigm made more sense in the past than it does in the
often in direct substitution for black reference points.¶ In the USA today
twenty-first century. The racial make-up of the nation has now changed dramatically. Since the passage
of the Immigration Reform Act of 1965, the USA has become more ‘coloured’. A ‘majority–minority’ national demographic shift is well underway.
Predicted to arrive by the mid-twenty-first century, the numerical eclipse of the white population is already in evidence locally and regionally. In
California, for example, non-Hispanic whites constitute only 39.7 per cent of the state's population. While the decline in the white population cannot be
correlated with any decline of white racial dominance, the dawning and deepening of racial multipolarity calls into question a sometimes implicit and
sometimes explicit black/white racial framework that is evident in Feagin and Elias's essay. Shifting racial demographics and identities also raise general
questions of race and racism in new ways that the ‘systemic racism’ approach is not prepared to explain.3 ¶ Class questions and issues of panethnicizing
trends, for example, call into question what we mean by race, racial identity and race consciousness. No racially defined group is even remotely uniform;
groups that we so glibly refer to as Asian American or Latino are particularly heterogeneous. Some have achieved or exceeded socio-economic parity
with whites, while others are subject to what we might call ‘engineered poverty’ in sweatshops, dirty and dangerous labour settings, or prisons. Tensions
within panethnicized racial groups are notably present, and conflicts between racially defined groups (‘black/brown’ conflict, for example) are evident in
both urban and rural settings. A substantial current of social scientific analysis now argues that Asians and Latinos are the ‘new white ethnics’, able to
‘work toward whiteness’4 at least in part, and that the black/white bipolarity retains its distinct and foundational qualities as the mainstay of US racism
(Alba and Nee 2005; Perlmann 2005; Portes and Rumbaut 2006; Waters, Ueda and Marrow 2007). ¶ We question that argument in light of the massive
demographic shifts taking place in the USA. Globalization, climate change and above all neoliberalism on a global scale, all drive migration. The
country's economic capacity to absorb enormous numbers of immigrants, low-wage workers and their families (including a new, globally based and very
female, servant class) without generating the sort of established subaltern groups we associate with the terms race and racism, may be more limited than it
was when the ‘whitening’ of Europeans took place in the nineteenth and twentieth centuries. In other words this argument's key precedent, the absorption
of white immigrants ‘of a different color’ (Jacobson 1998), may no longer apply. Indeed, we might think of the assimilationist model itself as a general
theory of immigrant incorporation that was based on a historically specific case study – one that might not hold for, or be replicated by, subsequent big
waves of immigration. Feagin and Elias's systemic racism model, while offering numerous important insights, does not inform concrete analysis of these
issues.¶ It is important going forward to understand how groups are differentially racialized and relatively positioned in the US racial hierarchy: once
again racism must be seen as a shifting racial project. This has important consequences, not only with respect to emerging patterns of inequality, but also
in regard to the degree of power available to different racial actors to define, shape or contest the existing racial landscape. Attention to such matters is
largely absent in Feagin and Elias's account. In their view racially identified groups are located in strict reference to the dominant ‘white racial frame’,
hammered into place, so to speak. As a consequence, they fail to examine how racially subordinate groups interact and influence each others’ boundaries,
conditions and practices. Because they offer so little specific analysis of Asian American, Latino or Native American racial issues, the reader finds
her/himself once again in the land (real or imaginary, depending on your racial politics) of bipolar US racial dynamics, in which whites and blacks play
the leading roles, and other racially identified groups – as well as those ambiguously identified, such as Middle Eastern and South Asian Americans
(MEASA) – play at best supporting roles, and are sometimes cast as extras or left out of the picture entirely. ¶
We still want to
acknowledge that blacks have been catching hell and have borne the brunt of the racist reaction
of the past several decades. For example, we agree with Feagin and Elias's critique of the reactionary
politics of incarceration in the USA. The ‘new Jim Crow’ (Alexander 2012) or even the ‘new slavery’ that the present system practises is
something that was just in its beginning stages when we were writing Racial Formation. It is now recognized as a national and indeed global scandal.
How is it to be understood?
Of course there are substantial debates on this topic, notably about the nature of the ‘prison-industrial
complex’ (Davis 2003, p. 3) and the social and cultural effects of mass incarceration along racial lines. But beyond Feagin and Elias's
denunciation of the ferocious white racism that is operating here, deeper political
implications are worth considering. As Alexander (2012), Mauer (2006), Manza and Uggen (2008) and movement groups like
Critical Resistance and the Ella Baker Center argue, the upsurge over recent decades in incarceration rates for black (and
brown) men expresses the fear-based, law-and-order appeals that have shaped US racial politics since the rise of Nixonland (Perlstein 2008) and the
at restricting the increasing impact of voters
of colour in a demographically shifting electorate.¶ There is a lot more to say about this, but for the present two key points
stand out: first, it is not an area where Feagin and Elias and we have any sharp disagreement, and second, for all the horrors and
injustices that the ‘new Jim Crow’ represents, incarceration, profiling and similar practices
remain political issues . These practices and policies are not ineluctable and
unalterable dimensions of the US racial regime . There have been previous waves of
reform in these areas. They can be transformed again by mass mobilization, electoral shifts
and so on. In other words, resistance is not futile .¶ Speaking of electoral shifts and the formal political arena, how
‘Southern strategy’. Perhaps even more central, racial repression aims
should President Barack Obama be politically situated in this discussion? How do Feagin and Elias explain Obama? Quite amazingly, his name does not
appear in their essay. Is he a mere token, an ‘oreo’, a shill for Wall Street? Or does Obama represent a new development in US politics, a black leader of
a mass, multiracial party that for sheer demographic reasons alone might eventually triumph over the white people's party, the Republicans? If the
President is neither the white man's token nor Neo, the One,5 then once again we are in the world of politics: neither the near-total white despotism
depicted by Feagin and Elias, nor a racially inclusive democracy. ¶ President Obama continues to enjoy widespread black support, although it is clear that
he has not protected blacks against their greatest cumulative loss of wealth in history. He has not explicitly criticized the glaring racial bias in the US
carceral system. He has not intervened in conflicts over workers’ rights – particularly in the public sector where many blacks and other people of colour
are concentrated. He has not intervened to halt or slow foreclosures, except in ways that were largely symbolic. Workers and lower-middle-class people
were the hardest hit by the great recession and the subprime home mortgage crisis, with black families faring worst, and Latinos close behind (Rugh and
Massey 2010); Obama has not defended them. Many writers have explained Obama's centrism and unwillingness to raise the issue of race as functions of
white racism (Sugrue 2010).¶ The black community – and other communities of colour as well – remains politically divided. While black folk have taken
the hardest blows from the reactionary and racist regime that has mostly dominated US politics since Reagan (if not since Nixon), no united black
movement has succeeded the deaths of Malcolm and Martin. Although there is always important political activity underway, a relatively large and fairly
conservative black middle class, a ‘black bourgeoisie’ in Frazier's (1957) terms, has generally maintained its position since the end of the civil rights era.
Largely based in the public sector, and including a generally centrist business class as well, this stratum has continued to play the role that Frazier – and
before him, Charles S. Johnson. William Lloyd Warner, Alison Davis and other scholars – identified: vacillation between the white elite and the black
masses. Roughly similar patterns operate in Latino communities as well, where the ‘working towards whiteness’ framework coexists with a substantial
amount of exclusion and super-exploitation.¶ Alongside class issues in communities of colour, there are significant gender issues. The disappearance of
blue-collar work, combined with the assault by the criminal justice system – chiefly profiling by the police (‘stop and frisk’) and imprisonment, have both
unduly targeted and victimized black and brown men, especially youth. Women
of colour are also targeted, especially by
violence, discrimination and assaults on their reproductive rights (Harris-Perry 2011); profiling is everywhere
(Glover 2009).¶ Here again we are in the realm of racial politics. Debate proceeds in the black community on Obama's credibilty, with Cornel West and
Tavis Smiley leading the critics. But it seems safe to say that in North Philly, Inglewood or Atlanta's Lakewood section, the president remains highly
popular. Latino support for Obama remains high as well. Feagin and Elias need to clarify their views on black and brown political judgement. Is it attuned
to political realities or has it been captured by the white racial frame? Is Obama's election of no importance? ¶ ***¶ In conclusion, do Feagin and Elias
really believe that white power is so complete, so extensive, so ‘sutured’ (as Laclau and Mouffe might say) as they suggest here? Do they mean to
suggest, in Borg-fashion, that ‘resistance is futile?’ This seems to be the underlying political logic of the ‘systemic racism’ approach, perhaps
unintentionally so. Is white racism so ubiquitous that no meaningful political challenge can be mounted against it? Are black and brown folk (yellow and
red people, and also others unclassifiable under the always- absurd colour categories) utterly supine, duped, abject, unable to exert any political pressure?
Is such a view of race and racism even recognizable in the USA of 2012? And is that a responsible political position to be advocating? Is this what we
want to teach our students of colour? Or our white students for that matter?¶ We suspect that if pressed, Feagin and Elias would concur with our
conflict, both within (and against) the state and in everyday life, is a fundamentally
political process. We think that they would also accept our claim that the ongoing political realities of race
provide extensive evidence that people of colour in the USA are not so powerless , and that
whites are not so omnipotent, as Feagin and Elias's analysis suggests them to be.¶ Racial formation theory allows us to see that there are
judgement that racial
contradictions in racial oppression. The racial formation approach reveals that white racism is unstable and constantly challenged, from the national and
indeed global level down to the personal and intra-psychic conflicts that we all experience, no matter what our racial identity might be. While racism –
largely white – continues to flourish, it is not monolithic. Yes, there
have been enormous increases in racial inequality in
recent years. But movement-based anti-racist opposition continues, and sometimes scores
victories. Challenges to white racism continue both within the state and in civil
society . Although largely and properly led by people of colour, anti-racist movements also incorporate whites such as Feagin and Elias themselves.
Movements may experience setbacks, the reforms for which they fought may be revealed as
inadequate, and indeed their leaders may be co-opted or even eliminated, but racial subjectivity and self-awareness, unresolved
and conflictual both within the individual psyche and the body politic, abides . Resistance is not futile.
AT K – Wilderson – Hudson
Anti-blackness is not an ontological antagonism---conflict is inevitable in
politics, but does not have to be demarcated around whiteness and blackness--the alt’s ontological fatalism recreates colonial violence
Peter Hudson 13, Political Studies Department, University of the Witwatersrand, Johannesburg , South Africa, has been on the
editorial board of the Africa Perspective: The South African Journal of Sociology and Theoria: A Journal of Political and Social
Theory and Transformation, and is a member of the Johannesburg Workshop in Theory and Criticism, The state and the colonial
unconscious, Social Dynamics: A journal of African studies, 2013
There always has to exist an outside, which is also inside, to
the extent it is designated as the impossibility from which the possibility of the existence of the
subject derives its rule (Badiou 2009, 220). But although the excluded place which isn’t excluded insofar as
it is necessary for the very possibility of inclusion and identity may be universal (may be considered
“ontological”), its content (what fills it) – as well as the mode of this filling and its reproduction – are
contingent. In other words, the meaning of the signifier of exclusion is not determined once and for all: the place
of the place of exclusion, of death is itself over-determined, i.e. the very framework for deciding
the other and the same, exclusion and inclusion, is nowhere engraved in ontological stone
but is political and never terminally settled. Put differently, the “curvature of intersubjective space” (Critchley
2007, 61) and thus, the specific modes of the “othering” of “otherness” are nowhere decided in advance (as a certain
ontological fatalism might have it) (see Wilderson 2008). The social does not have to be
divided into white and black , and the meaning of these signifiers is never necessary – because
they are signifiers. To be sure, colonialism institutes an ontological division, in that whites exist in a way barred to blacks –
who are not. But this ontological relation is really on the side of the ontic – that is, of all contingently
constructed identities, rather than the ontology of the social which refers to the ultimate unfixity,
the indeterminacy or lack of the social. In this sense, then, the white man doesn’t exist, the black man doesn’t exist (Fanon 1968, 165); and neither
does the colonial symbolic itself, including its most intimate structuring relations – division is constitutive of the social, not the colonial
division. “Whiteness” may well be very deeply sediment in modernity itself, but respect for the “ontological difference”
(see Heidegger 1962, 26; Watts 2011, 279) shows up its ontological status as ontic. It may be so deeply sedimented that it becomes
difficult even to identify the very possibility of the separation of whiteness from the very possibility of
order, but from this it does not follow that the “void” of “black being” functions as the ultimate
substance, the transcendental signified on which all possible forms of sociality are said to rest .
What gets lost here, then, is the specificity of colonialism, of its constitutive axis, its “ontological” differential. A
crucial feature of the colonial symbolic is that the real is not screened off by the imaginary in the way it is under capitalism. At the place of the colonised, the symbolic
and the imaginary give way because non-identity (the real of the social) is immediately inscribed in the
“lived experience” (vécu) of the colonised subject. The colonised is “traversing the fantasy” (Zizek 2006a, 40–60) all the time; the void of the
verb “to be” is the very content of his interpellation. The colonised is, in other words, the subject of anxiety for whom the
symbolic and the imaginary never work, who is left stranded by his very interpellation.4 “Fixed” into “non-fixity,” he is
eternally suspended between “element” and “moment”5 – he is where the colonial symbolic falters in
the production of meaning and is thus the point of entry of the real into the texture itself of
colonialism. Be this as it may, whiteness and blackness are (sustained by) determinate and contingent
practices of signification; the “structuring relation” of colonialism thus itself comprises a knot of
significations which, no matter how tight, can always be undone. Anti-colonial – i.e., anti-“white” –
modes of struggle are not (just) “psychic” 6 but involve the “ reactivation ” (or “de-sedimentation”)7 of colonial
objectivity itself. No matter how sedimented (or global), colonial objectivity is not ontologically immune to antagonism. Differentiality, as Zizek insists (see Zizek
Thus the self-same/other distinction is necessary for the possibility of identity itself.
2012, chapter 11, 771 n48), immanently entails antagonism in that differentiality both makes possible the existence of any identity whatsoever and at the same time – because it is
the presence of one object in another – undermines any identity ever being (fully) itself. Each element in a differential relation is the condition of possibility and the condition of
impossibility of each other. It is this dimension of antagonism that the Master Signifier covers over transforming its outside (Other) into an element of itself, reducing it to a
symbolisation produces an ineradicable excess over itself, something it can’t
totalise or make sense of, where its production of meaning falters. This is its internal limit point, its real:9 an errant “object” that has no
condition of its possibility.8 All
place of its own, isn’t recognised in the categories of the system but is produced by it – its “part
of no part” or “object small a.”10 Correlative to this object “a” is the subject “stricto sensu” – i.e., as the empty subject of the signifier without an identity
that pins it down.11 That is the subject of antagonism in confrontation with the real of the social, as
distinct from “subject” position based on a determinate identity.
AT K – Wilderson – Brown
The invocation of social death as ontologically inevitable inscribes a
pessimism towards politics which makes agency impossible and oversimplifies
the history of resistance
Vincent Brown 9, Prof. of History and African and African-American Studies @ Harvard Univ., December 2009, "Social Death
and Political Life in the Study of Slavery," American Historical Review, p. 1231-1249
Specters of the Atlantic is self-consciously a work of theory (despite Baucom’s prodigious archival research), and social death may be
largely unproblematic as a matter of theory, or even law. In these arenas, as David Brion Davis has argued, “the slave has no
legitimate, independent being, no place in the cosmos except as an instrument of her or his master’s will.”12 But the concept
often becomes a general description of actual social life in slavery. Vincent Carretta, for example, in his authoritative biography of the abolitionist writer and former slave Olaudah Equiano, agrees with Patterson that because enslaved
Africans and their descendants were “stripped of their personal identities and history, [they] were forced to suffer what has been aptly
called ‘social death.’ ” The self-fashioning enabled by writing and print “allowed Equiano to resurrect himself publicly” from the
condition that had been imposed by his enslavement.13 The living conditions of slavery in eighteenth-century Jamaica, one slave
society with which Equiano had experience, are described in rich detail in Trevor Burnard’s unflinching examination of the career of
Thomas Thistle- wood, an English migrant who became an overseer and landholder in Jamaica, and who kept a diary there from 1750
to 1786. Through Thistlewood’s descriptions of his life among slaves, Burnard glimpses a “world of uncertainty,” where the enslaved
were always vulnerable to repeated depredations that actually led to “significant slave dehumanization as masters sought, with
considerable success, to obliterate slaves’ personal histories.” Burnard consequently concurs with Patterson: “slavery completely
stripped slaves of their cultural heritage, brutalized them, and rendered ordinary life and normal relationships extremely difficult.”14
This was slavery, after all, and much more than a transfer of migrants from Africa to America.15 Yet one wonders, after reading
Burnard’s indispensable account, how slaves in Jamaica or- ganized some of British America’s greatest political events during
Thistlewood’s time and after, including the Coromantee Wars of the 1760s, the 1776 Hanover conspiracy, and the Baptist War of
1831–1832. Surely they must have found some way to turn the “disorganization, instability, and chaos” of slavery into collective
forms of belonging and striving, making connections when confronted with alien- ation and finding dignity in the face of dishonor.
Rather than pathologizing slaves by allowing the condition of social death to stand for the
experience of life in slavery, then, it might be more helpful to focus on what the enslaved actually
made of their situation.
Among the most insightful texts to explore the experiential meaning of Afro- Atlantic slavery (for both the slaves and their
descendants) are two recent books by Saidiya Hartman and Stephanie Smallwood. Rather than eschewing the concept of social death,
as might be expected from writing that begins by considering the per- spective of the enslaved, these two authors use the idea in
penetrating ways. Hart- man’s Lose Your Mother: A Journey along the Atlantic Slave Route and Smallwood’s Saltwater
Slavery: A Middle Passage from Africa to American Diaspora extend social death beyond a general description of
slavery as a condition and imagine it as an experience of self. Here both the promise and the
problem with the concept are most fully apparent.16
Both authors seek a deeper understanding of the experience of enslavement and its consequences
for the past, present, and future of black life than we generally find in histories of slavery. In Hartman’s account
especially, slavery is not only an object of study, but also the focus of a personal memoir. She travels along a slave route in Ghana,
from its coastal forts to the backcountry hinterlands, symbolically reversing the first stage of the trek now commonly called the
Middle Passage. In searching prose, she meditates on the history of slavery in Africa to explore the
precarious nature of belonging to the social category “African American.” Rendering her re- markable
facility with social theory in elegant and affective terms, Hartman asks the question that nags all identities, but especially those forged
by the descendants of slaves: What identifications, imagined affinities, mythical narratives, and acts of re- membering and forgetting
hold the category together? Confronting her own alienation from any story that would yield a knowable genealogy or a comfortable
identity, Hartman wrestles with what it means to be a stranger in one’s putative motherland, to be denied country, kin, and identity,
and to forget one’s past—to be an orphan.17 Ultimately, as the title suggests, Lose Your Mother is an injunction to accept dispossession as the basis of black self-definition.
Such a judgment is warranted, in Hartman’s account, by the implications of social death both for the experience of enslavement and
for slavery’s afterlife in the present. As Patterson delineated in sociological terms the death of social personhood and the
reincorporation of individuals into slavery, Hartman sets out on a personal quest to “retrace the process by which lives were destroyed
and slaves born.”18 When she contends with what it meant to be a slave, she frequently invokes
Patterson’s idiom: “Seized from home, sold in the market, and severed from kin, the slave was for
all intents and purposes dead, no less so than had he been killed in combat. No less so than had she never
belonged to the world.” By making men, women, and children into commodities, enslavement destroyed lineages, tethering people to
own- ers rather than families, and in this way it “annulled lives, transforming men and women into dead matter, and then resuscitated
them for servitude.” Admittedly, the enslaved “lived and breathed, but they were dead in the social world of men.”19 As it turns out,
this kind of alienation is also part of what it presently means to be African American. “The transience of the slave’s existence,” for
example, still leaves its traces in how black people imagine and speak of home:
We never tire of dreaming of a place that we can call home, a place better than here, wherever here might be . . . We stay there, but we
don’t live there . . . Staying is living in a country without exercising any claims on its resources. It is the perilous condition of existing
in a world in which you have no investments. It is having never resided in a place that you can say is yours. It is being “of the house”
but not having a stake in it. Staying implies transient quarters, a makeshift domicile, a temporary shelter, but no attachment or
affiliation. This sense of not belonging and of being an extraneous element is at the heart of slavery.20
“We may have forgotten our country,” Hartman writes, “but we haven’t forgotten our dispossession.”21
Like Baucom, Hartman sees the history of slavery as a constituent part of a tragic present. Atlantic
slavery continues to be manifested in black people’s skewed life chances, poor education and
health, and high rates of incarceration, poverty, and premature death. Disregarding the commonplace
temporalities of professional historians, whose literary conventions are generally predicated on a formal
distinction between past, present, and future, Hartman addresses slavery as a problem that spans
all three. The afterlife of slavery inhabits the nature of belonging, which in turn guides the “freedom dreams” that shape prospects
for change. “If slavery persists as an issue in the political life of black America,” she writes, “it is not because of an antiquated
obsession with bygone days or the burden of a too-long memory, but because black lives are still imperiled and devalued by a racial
calculus and a political arithmetic that were entrenched centuries ago.”22
A professor of English and comparative literature, Hartman is in many respects in a better position than most historians to understand
events such as the funeral aboard the Hudibras. This is because for all of her evident erudition, her scholarship is harnessed not so
much to a performance of mastery over the facts of what hap- pened, which might substitute precision for understanding, as to an act
of mourning, even yearning. She writes with a depth of introspection and personal anguish that is transgressive of professional
boundaries but absolutely appropriate to the task. Reading Hartman, one wonders how a historian could ever write
dispassionately about slavery without feeling complicit and ashamed. For dispassionate
accounting—exemplified by the ledgers of slave traders—has been a great weapon of the powerful, an
episteme that made the grossest violations of personhood acceptable, even necessary. This is the kind
of bookkeeping that bore fruit upon the Zong. “It made it easier for a trader to countenance yet another dead black body or for a
captain to dump a shipload of captives into the sea in order to collect the insurance, since it wasn’t possible to kill cargo or to murder a
thing already denied life. Death was simply part of the workings of the trade.” The archive of slavery, then, is “a mortuary.” Not
content to total up the body count, Hartman offers elegy, echoing in her own way the lamentations of the women aboard the Hudibras.
Like them, she is concerned with the dead and what they mean to the living. “I was desperate to reclaim the dead,” she writes, “to
reckon with the lives undone and obliterated in the making of human commodities.”23
It is this mournful quality of Lose Your Mother that elevates it above so many histories of slavery, but the same sense of lament
seems to require that Hartman overlook small but significant political victories like the one described by
Butter- worth. Even as Hartman seems to agree with Paul Gilroy on the “value of seeing the consciousness of the slave as involving an
extended act of mourning,” she remains so focused on her own commemorations that her text makes little
space for a consideration of how the enslaved struggled with alienation and the fragility of
belonging, or of the mourning rites they used to confront their condition.24 All of the ques- tions she raises about the meaning of
slavery in the present—both highly personal and insistently political—might as well be asked about the meaning of slavery to slaves
themselves, that is, if one begins by closely examining their social and political lives rather than assuming their lack of social being.
Here Hartman is undone by her reliance on Orlando Patterson’s totalizing definition of slavery. She asserts
that “no solace can be found in the death of the slave, no higher ground can be located, no perspective can be found from which death
serves a greater good or becomes any- thing other than what it is.”25 If she is correct, the events on the Hudibras were of negligible
importance. And indeed, Hartman’s understandable emphasis on the personal damage wrought by slavery
encourages her to disavow two generations of social history that have demonstrated slaves’
remarkable capacity to forge fragile com- munities, preserve cultural inheritance, and resist the
predations of slaveholders. This in turn precludes her from describing the ways that violence, dislocation, and death actually
generate culture, politics, and consequential action by the enslaved.26
This limitation is particularly evident in a stunning chapter that Hartman calls “The Dead Book.” Here she creatively reimagines the
events that occurred on the voyage of the slave ship Recovery, bound, like the Hudibras, from the Bight of Biafra to Grenada, when
Captain John Kimber hung an enslaved girl naked from the mizzen stay and beat her, ultimately to her death, for being “sulky”: she
was sick and could not dance when so ordered. As Hartman notes, the event would have been unre- markable had not Captain Kimber
been tried for murder on the testimony of the ship’s surgeon, a brief transcript of the trial been published, and the woman’s death been
offered up as allegory by the abolitionist William Wilberforce and the graphic satirist Isaac Cruikshank. Hartman re-creates the
murder and the surge of words it inspired, representing the perspectives of the captain, the surgeon, and the aboli tionist, for each of
whom the girl was a cipher “outfitted in a different guise,” and then she puts herself in the position of the victim, substituting her own
voice for the unknowable thoughts of the girl. Imagining the experience as her own and wistfully representing her demise as a
suicide—a final act of agency—Hartman hopes, by this bold device, to save the girl from oblivion. Or perhaps her hope is to prove the
impossibility of ever doing so, because by failing, she concedes that the girl cannot be put to rest. It is a compelling move, but there is
something missing. Hartman discerns a convincing subject position for all of the participants in the events sur- rounding the death of
the girl, except for the other slaves who watched the woman die and carried the memory with them to the Americas, presumably to tell
others, plausibly even survivors of the Hudibras, who must have drawn from such stories a basic perspective on the history of the
Atlantic world. For the enslaved spectators, Hartman imagines only a fatalistic detachment: “The women were assembled a few feet
away, but it might well have been a thousand. They held back from the girl, steering clear of her bad luck, pestilence, and
recklessness. Some said she had lost her mind. What could they do, anyway? The women danced and sang as she lay dying.”
Hartman ends her odyssey among the Gwolu, descendants of peoples who fled the slave raids and who, as communities of refugees,
shared her sense of dispos- session. “Newcomers were welcome. It didn’t matter that they weren’t kin because genealogy didn’t
matter”; rather, “building community did.” Lose Your Mother con- cludes with a moving description of a particular one of their songs,
a lament for those who were lost, which resonated deeply with her sense of slavery’s meaning in the present. And yet Hartman has
more difficulty hearing similar cries intoned in the past by slaves who managed to find themselves.27
Saltwater Slavery has much in common with Lose Your Mother. Smallwood’s study of the slave trade from the Gold Coast to the
British Americas in the late seventeenth and early eighteenth centuries likewise redeems the experience of the people traded like so
many bolts of cloth, “who were represented merely as ciphers in the political arithmetic,” and therefore “feature in the documentary
record not as subjects of a social history but as objects or quantities.”28 Each text offers a penetrating analysis of the market logic that
turned people into goods. Both books work with the concept of social death. However, Smallwood examines the problem of social
death for the enslaved even more closely than Hartman does.29
Like Hartman, Smallwood sees social death as a by-product of commodification. “If in the regime of the market Africans’ most
socially relevant feature was their exchangeability,” she argues, “for Africans as immigrants the most socially relevant feature was
their isolation, their desperate need to restore some measure of social life to counterbalance the alienation engendered by their social
death.” But Small- wood’s approach is different in a subtle way. Whereas for Hartman, as for others, social death is an accomplished
state of being, Smallwood veers between a notion of social death as an actual condition produced by violent
dislocation and social death as a compelling threat. On the one hand, she argues, captivity on the Atlantic littoral
was a social death. Exchangeable persons “inhabited a new category of mar- ginalization, one not of extreme alienation within the
community, but rather of ab- solute exclusion from any community.” She seems to accept the idea of enslaved
commodities as finished products for whom there could be no socially relevant relationships: “the
slave cargo constituted the antithesis of community.” Yet elsewhere she contends that captives were only “menaced” with social
death. “At every point along the passage from African to New World markets,” she writes, “we find a stark contest between slave
traders and slaves, between the traders’ will to commodify people and the captives’ will to remain fully recognizable as human
subjects.”30 Here, I think, Smallwood captures the truth of the idea: social death was a receding ho- rizon—the farther slaveholders
moved toward the goal of complete mastery, the more they found that struggles with their human property would continue, even into
the most elemental realms: birth, hunger, health, fellowship, sex, death, and time.
If social death did not define the slaves’ condition, it did frame their vision of apocalypse. In a harrowing chapter on the meaning of
death (that is, physical death) during the Atlantic passage, Smallwood is clear that the captives could have no frame of reference for
the experience aboard the slave ships, but she also shows how des- perate they were to make one. If they could not reassemble some
meaningful way to map their social worlds, “slaves could foresee only further descent into an endless purgatory.” The women
aboard the Hudibras were not in fact the living dead; they were the mothers of gasping new
societies. Their view of the danger that confronted them made their mourning rites vitally
important, putting these at the center of the women’s emerging lives as slaves—and as a result at
the heart of the struggles that would define them. As Smallwood argues, this was first and foremost a battle over
their presence in time, to define their place among ancestors, kin, friends, and future progeny. “The connection Africans needed was a
narrative continuity between past and present—an epistemological means of connecting the dots between there and here, then and
now, to craft a coherent story out of incoherent experience.” That is precisely what the women on the Hudibras fought to
accomplish.31
AT K – Wilderson – ontologizing race bad
Their ontological framing of blackness is necessarily problematic—painting it
as oppositional denies its existence distinct from white supremacy which
makes it reliant of oppression
Pinn, 04- (Anthony Pinn- Macalester College Professor of Religious Studies) ‘‘Black Is, Black Ain’t’’: Victor Anderson, African
American Theological Thought, and Identity Dialog: A Journal of Theology, pg.57-58Volume 43, Number 1, Spring 2004, Wiley
Online Library, online//droneofark
This connection between ontological blackness and religion is natural because: ‘‘ontological blackness signifies the totality of black
existence, a binding together of black life and experience. In its root, religio, religion denotes tying together, fastening behind, and
binding together. Ontological blackness renders black life and experience a totality.’’13 According to
Anderson, Black theological discussions are entangled in ontological blackness. And accordingly,
discussions of black life revolve around a theological understanding of Black experience limited
to suffering and survival in a racist system. The goal of this theology is to find the ‘‘meaning of
black faith’’ in the merger of black cultural consciousness, icons of genius, and post-World War
II Black defiance. An admirable goal to be sure, but here is the rub: Black theologians speak, according to Anderson,
in opposition to ontological whiteness when they are actually dependent upon whiteness for the
legitimacy of their agenda. Furthermore, ontological blackness’s strong ties to suffering and
survival result in blackness being dependent on suffering, and as a result social transformation
brings into question what it means to be black and religious. Liberative outcomes ultimately force an identity
crisis, a crisis of legitimation and utility. In Anderson’s words: Talk about liberation becomes hard to justify where
freedom appears as nothing more than defiant self-assertion of a revolutionary racial
consciousness that requires for its legitimacy the opposition of white racism. Where there exists no
possibility of transcending the blackness that whiteness created, African American theologies of liberation must be seen not only as
crisis theologies; they remain theologies in a crisis of legitimation.14 This conversation becomes more ‘‘refined’’ as
new cultural resources are unpacked and various religious alternatives acknowledged. Yet the
bottom line remains racialization of issues and agendas, life and love. Falsehood is perpetuated through the
‘‘hermeneutic of return,’’ by which ontological blackness is the paradigm of Black existence and thereby sets the agenda of Black
liberation within the ‘‘postrevolutionary context’’ of present day USA. One ever finds the traces of the Black aesthetic which pushes
for a dwarfed understanding of Black life and a sacrifice of individuality for the sake of a unified Black ‘faith’ . Yet differing
experiences of racial oppression (the stuff of ontological blackness) combined with varying
experiences of class, gender and sexual oppression call into question the value of their racialized
formulations. Implicit in all of this is a crisis of faith, an unwillingness to address both the glory and guts of Black existence—
nihilistic tendencies that, unless held in tension with claims of transcendence, have the potential
to overwhelm and to suffocate. At the heart of this dilemma is friction between ontological blackness and ‘‘contemporary
postmodern black life’’—issues, for example related to ‘‘selecting marriage partners, exercising freedom of movement, acting on gay
and lesbian preferences, or choosing political parties.’’15 How does one foster balance while embracing difference as positive?
Anderson looks to Nietzsche. European genius, complete with its heroic epic, met its match in the aesthetic categories of tragedy and
the grotesque genius revived and espoused by Friedreich Nietzsche. The grotesque genius served as an effective
counter-discourse by embracing both the ‘light’ and ‘dark’ aspects of life, and holding in tension
oppositional sensations—pleasure and pain, freedom and oppression.16 Utilizing Nietzsche’s work,
Anderson ask: ‘‘what should African American cultural and religious criticism look like when
they are no longer romantic in inspiration and the cult of heroic genius is displaced by the
grotesquery—full range of expression, actions, attitudes, behaviors everything found in African
American life—of contemporary black expressive culture and public life?’’17 Applied to African
Americans, the grotesque embodies the full range of African American life—all expressions, actions, attitudes, and behavior. With a
hermeneutic of the grotesque as the foci, religio-cultural criticism is free from the totalizing nature of racial apologetics and the
classical Black aesthetic. By extension, Black theology is able to address both issues of survival (Anderson sees their importance.) and
the larger goal of cultural fulfillment, Anderson’s version of liberation. That is to say, placing ‘‘blackness’’ along side
other indicators of identity allows African Americans to define themselves in a plethora of ways
while maintaining their community status. This encourages African Americans to see themselves
as they are— complex and diversified—no longer needing to surrender personal interests for the
sake of monolithic collective status.
AT K – psycho
Only the permutation solves- reforms must begin from the micro-meso- and macro
levels to triggers lines of flight that can break down the symmetries of the lack’s
prison system
Arrigo ’10 [July 2010, Ph.D. (1993) Pennsylvania State University Dr. Bruce Arrigo is a social theorist and research scientist
who teaches a range of courses in Critical/Philosophical Criminology; Crime, Law, and Psychology; Deviant and Criminal Behavior;
and Social Justice Policy at the graduate and undergraduate levels. “Revolution in Penology”]
What direct relevance does the risk society have for penology? We have already had the occasion to review the
work of Bauman (1998), who suggests one ominous direction for penology in a global order
based more on differences: the proliferation of places of exclusion and immobility (see also Young
1999). This is in accord with Giddens’ prediction of a fundamentalist line of flight. We have also seen the ascendancy of
the actuarial model in criminal justice, where predictive instruments determine interventionist
policies. What needs mobilization are active forces that privilege cosmopolitan views. DyerWitheford (1999) has concisely summarized some further suggestions. In brief, he argues for (1) an
institutionalized, guaranteed income; (2) communication networks accessible to all, regardless of income levels; (3) the use of the
latter for decentralized forms of governance; and (4) more democratic controls in technological developments (1999, 192– 218). These
strategies would act synergistically toward the development of a new noncapitalist socius. Rather
than a “withering away of the state” as suggested by Marx, Dyer-Witheford’s review of the
literature posits a “destatification” in a downward direction. For DyerWitheford, “The role of
government is redefined as supporting collective initiatives rather than substituting for them,
diffusing rather than
concentrating control, nurturing social transformation from the bottom up rather than engineering
it from the top down” (1999, 209). Moreover, activism in various forms, for Dyer-Witheford, already has
a growing viable existence and efficacy (e.g., ecological, feminist, housing, labor). For example, we increasingly
see rainbow coalitions emerging and dissipating in accordance with the logic of the multitude. By
lending support to these and other efforts at dynamic reform, destatification is made that much
more realizable. Indeed, as Dyer-Witheford tells us, this “battlefield map . . . does not identify an agenda to
be implemented ‘after the revolution,’ but a series of initiatives whose advancement would
contaminate and overload the circuitry of capital with demands and requirements contradictory to
the imperatives of profit.” And further, “pursuit of these interrelated measures would cumulatively
undermine the logic that binds society around market exchange and increasingly require the
reassembly of everyday activities into a new configuration [read, socius]” (Dyer-Witheford 1999, 217). It is
under such circumstances as these that the prison-form and its expression will begin to atrophy. It
is under conditions such as these that more genuine forms of restorative and transformative
justice would take root. Our modest proposal for a radical desistance approach, a transdesistance
model, steeped in constitutive principles entails a focus on three intersecting “levels” (i.e.,
“micro,” “meso,” and “macro”). These three levels must be seen as constitutive of the whole and
in turn constituted by the whole. Critical strategies must engage the synergenic potentials of their
resonances. Understandings of the prison-form (and crime) can only be more fully actualized
from within a holistic approach. Prison-forms (including their attendant philosophies, principles,
and practices) must have their grounds for existence undermined. We do not project a final
destination in these preliminary approximations; rather, we suggest possible sources for lines of
flight that may in their own course witness symmetry-breaking cascades. These are the crystalline seeds of
change that can usher in unheralded potentials in becoming. Thus, our vision quest for a war machine, a rhizomatic excursion, folds
back upon itself in a familiar, though novel, refrain. Revolution. From whence does it come? It emerges in unconscious desire and is
echoed in one’s assemblages. It is given birth in an imperceptible whisper or in a shadow’s desperate glow. And when it first appears,
it is like a stranger calling: unrecognizable, inaccessible, and unspeakable. But when it is movement, a movement for the masses, it is
an active line of flight: productive, mutating, transforming. This nomadic expedition, always already a departure rather than an arrival
in its unfolding meaning, continues apace now, again, anew. And so it is with penology, the molecular revolution in penology. . . .
We must engage the psychoanalytic regime on multiple levels- the
permutation is an act of confusion that throws a wrench into the biopolitical
machine
Arrigo ’10 [July 2010, Ph.D. (1993) Pennsylvania State University Dr. Bruce Arrigo is a social theorist and research scientist
who teaches a range of courses in Critical/Philosophical Criminology; Crime, Law, and Psychology; Deviant and Criminal Behavior;
and Social Justice Policy at the graduate and undergraduate levels. “Revolution in Penology”]
We have seen that the war machine must engage various molar levels. At the more “micro” level,
personal strategies for daily survival and challenge are needed. At the more “meso” level, alternative networks
and organizations are desirable. At the more “macro” level, either a reformist remedial or radical reformist
strategy is recommended (see Henry and Milovanovic 1996). We return to the constitutive elements of COREL
sets/assemblages for guidance at these various “levels.” We recall that each comprises (1) a material component
(“machinic processes” that produce cuts and breaks or flows of matter/energy providing the raw
material on which expressive forms work), 3 (2) an expressive component (the manifest forms—
discursive and nondiscursive), (3) territorialization (tendency toward molar structurations and
capture in the form of axioms), and (4) deterritorialization (tendency to differentiate, dissipate,
break apart). We also recall that iteration and nonlinearity prevail in terms of linkages and effects. Let us
briefly provide some possible directions in producing change that may privilege active molecular forces and becoming. Suggestive at
the more “micro” level is Massumi (1992, 103– 106), who offers five recommendations. We provide some additional thoughts that
augment and amplify his observations. 1. “Stop the world.” Whereas being concerns stasis, repetition of the same, reactive forms of
desire, becoming is about interruption, disconnections, the creation of spaces within which new relations are (and can be) actively
constructed. Thus, Mary’s world, although attaining homeostasis and cyclical repetitions, must be interrupted. It is within the
interruptions (“zones of indeterminacy”) that epiphanies arise. 4 Lacan’s (1991) combined discourse of the analyst/hysteric, integrated
with Paulo Freire’s (1973) work on dialogical pedagogy, indicates that interventionists, cultural revolutionaries, may be catalysts in
accessing, mobilizing, and retrieving the subaltern’s desire for more genuine expression. The suggestion here is not that these
interventionists function as revolutionary vanguards armed with the “appropriate” understandings (master discourse) of struggle,
alienation, exploitation, victimization, and the like; rather, they nomadically participate in engaged, ongoing dialogical encounters. 2.
“Cherish derelict spaces.” Within a socius and its molar forms, spaces always already exist that do not find themselves pacified—
regimented, linearized, striated, axiomatized. These are “zones of indeterminacy” (Bergson 1998) where far-from-equilibrium
conditions prevail, where with some perturbation dissipative forms will appear as emergents. These are “autonomous zones” that can
be the basis of an alternative becoming. The autonomia movement in Italy during the 1960s and 1970s attempted to exploit this
movement’s revolutionary potential (see Negri 1984, 1999). Similarly, Foucault’s 5 later works addressed “limit experiences.” He
argued that the only genuine direction to recapture subjectivity was in transgressing the various boundaries/limits imposed (inscribed)
on the body (see Miller 2000; Lyng 2005, 39– 47). These transgressive moments, crossing boundaries, “involved experiments in selfcreation . . . forms of resistance . . . acts of liberation” (Lyng 2005, 45– 47). Moreover, critical race theorists have called for the
creation of such alternative spaces.
AT K – indigenous peoples
Challenging the prison industrial complex is critical to indigenous
resistance—prison expansion is a tool of colonization
Ogden 14
[2014, Stormy Ogden, “The Prison-Industrial-Complex in Indigenous California”, pp. 57-58 in “Global Lockdown: Race, Gender, and
the Prison-Industrial Complex”]
I write this chapter from the position of a California Indian woman, a tribal woman of Yokuts and Pomo
ancestry. I also write as an ex-prisoner and a survivor of colonization. At the beginning of the colonization process two tools of
genocide were forced upon Native people: the bottle and the bible. Along with these tools the traditional ways of
behavior and conduct of Native people were criminalized . State and federal governments
defined Native Americans as deviant and criminal through such procedures as the Dawes Act.
With the enforcement of these new laws, Native people were locked up in a spectrum of
“punishing institutions ,” including military forts, missions, reservations, boarding schools, and more recently, state and
federal prisons. Historically, the
most brutal methods of social control have been directed at a society’s
most oppressed groups. In North America, the groups that are most likely to be sent to jail and prison
are the poor and people of color. A large proportion of people who end up behind bars
are indigenous . On any given day, one in twenty-five Native Americans are under the jurisdiction of
the criminal justice system, a rate that is 2.4 times that of whites. Native American women are
particularly targeted for punishment. For example, Native American women in South Dakota make up
32 percent of the prison population but only 8.3 percent of the general population. Angela Y. Davis
describes the prison-industrial complex as a complex web of racism, social control,
and profit . The experience of racial subordination, repression, and economic exploitation is not
new to the Native people of these land. From the missions to the reservations, California Indians have struggled for
The prisonindustrial complex was built on the ancestral lands of the indigenous people of this
continent and has contributed to the devastating process of colonization . It is essential for
survival in the face of an array of brutal mechanisms designed to control and eliminate the region’s first peoples.
prison scholars and activists to understand the colonial roots of the prison-industrial complex and to make visible the stories of Native
prisoners.
AT K – neolib
Permutation: do both—their link arguments assume freemarket language
that the affirmative criticizes—legalization is a way of activating the radical
potential of the alternative
Smith 90
[April 1990, Phil Smith, “Toward a radical politics of legalization”, Polemcist; pages 10-11; Volume 1, No. 5,
http://www.utwatch.org/archives/polemicist/vol1no5_legalization.html]
Legalization: a radical agenda The growing public furor over drug policy opens new
political space for radical critics . This radical dissent must be firmly grounded in an
overarching critique of late capitalist American society - the larger context of the War on Drugs.
This critique has at its base a vision of a society founded on economic as well as formal political
democracy, but it must also take into account the anti-authoritarian impluse deeply ingrained in our
society. Get Stoned! This method can't fail! Within such a critique, and given the authoritarian political project embodied in the War on Drugs, legalization of
the use and traffic in illegal drugs becomes not only thinkable, but also desirable as
the most progressive means of addressing the problem , and as a method of
unmasking the attempt by the late capitalist state to increase its sphere of
domination and hegemony . Bush and Bennett are pushing a project of class domination, racial division, and U.S. militarism. Further, we must note the difference between
recreational drug use and self-destructive drug abuse. No one advocates a nation of junkies; what is is needed is an informed - not propogandized - population that understands both the pleasures and the dangers of
The radical position must therefore support drug education, treatment programs and
rehabilitation. But beyond promoting an enlightened, and responsible attitude toward drugs,
various intoxicants.
radicals must challenge the Bush-Bennett drug hysteria on the following grounds:
The anti-drug frenzy serves the interest of reactionaries by obscuring the underlying
conditions - based on the economic-political structure - which impoverish our cities and their residents. As long as the
focus is exclusively on "Crack Street," no one asks why drug abuse is such an attractive
alternative to the straight life. The War on Drugs is racist, both in its genealogy and in its
willingness to sacrifice black and brown communities. Historically, drug laws served as instruments for
oppressing minorities, from the anti-Chinese opium smoking ban in California, to the hysterical
racist propagand accompanying the criminalization campaigns of the 1910s and 1930s.
Government officials plied an acquiescent mass media with vile propganda of the
"dope-crazed niggers are raping our white women" variety - the lineal predecessor
of the Bush campaign's Willie Horton ads.
Labor alienation and the expansion of labor power is only possible via racist
consciousness
Gabriel and Todorova ’2 [2002, Satyananda J., Evgenia O., “Racism and Capitalist Accumulation: An Overdetermined
Nexus,” Journal of Critical Sociology]
The pervasiveness of racial consciousness cannot help but shape the economic relationships in
contemporary capitalist social formations. The interaction of racialized agents shapes the
parameters of a wide range of economic processes such as market exchange transactions,
employment contracts, pricing, capital budgeting decisions, and so on. The fact that one can
observe patterns of differential economic success and failure based on racial categories is
evidence of the impact of racism upon agents. Economic theories, both Marxian and neoclassical,
have attempted to explain rational behavior of agents in the context of the market for laborpower. The Marxian approach has been to make sense of this market in the context of capitalist
exploitation, for which the market in labor-power is a precondition. Capitalism presupposes the
existence of free wage laborers. In the Marxian tradition, direct producers become "free" to sell
their labor-power as a result of determinate social and natural processes. It is in this process of
gaining capitalist freedom that the rationality of wage laboring is formed. Capitalist freedom
came to exist in contrast to serfdom and slavery. In this sense, it was born of a complex
association of ideas. In some instances, this would have included, from the earliest stages of
capitalist development, ideas produced within racist paradigms. The wage laboring consciousness
necessary for an agent to be willing and able to sell her labor power would have been influenced,
in the Western Europe and Great Britain of early capitalist development, by aristocratic racism
and then later by white supremacist racism. The perception of capitalist freedom, in contrast to serfdom or slavery,
would certainly have made it easier to create, reproduce and expand the wage laboring consciousness. Thus, the creation of
labor markets would, necessarily, be very different in an environment where direct producers
view themselves as already free. There are countless stories of the difficulties of creating
labor markets in African colonies , for instance. The classic case is that of Tanganyika, under
German colonial rule, where resistance to working as wage laborers was so strong that entire
villages would move rather than submit to the labor market in order to meet the imposed hut
taxes. These villagers had lived as communal producers, collectively performing and
appropriating surplus labor. Their history was one of collective decision-making, communal
freedom, and the absence of racialized consciousness. Capitalist freedom did not appear to be an attractive
alternative. This was not the case in Britain, Western Europe, or the United States, where the perceived alternative was, in many but
not all cases, serfdom or slavery. Under those conditions, the legitimacy of capitalist freedom was less likely to be challenged. We
have already mentioned the importance of dissociation to creating a wage laboring consciousness, one in which the individual can sell
her labor power like so many bushels of tomatoes. The various forms of racialized consciousness that were
prevalent in most capitalist social formations, having already produced forms of dissociation and
alienation in the consciousness of direct producers and others, may have been critical to the
rapidity with which labor markets were established and expanded.
Race explains neolib
ROBERTS & MAHTANI ’10 [March 2010, David J. and Minel Dpt. Of Geography and Planning Univ of
Toronto.1le- Neoliberalizing Race, Racing Neoliberalism: Placing “Race” in Neoliberal Discourse; a paper first presented in 2008 at
the AAGs in Boston, MA in April; published online February 18th; ANTIPODE, Vol. 42, Issue 2; pp. 248-257,
http://ccrri.ukzn.ac.za/docs/Neoliberalizing_Race,_Racing_Neoliberalism_Placing_Race_In_Neoliberal_Discourses_.pdf]
We draw from these two examples to demonstrate that while they both should be lauded in many respects, in both cases, the resulting
theorization treats racism as an inevitable result of neoliberalization rather than mutually
constitutive with neoliberalizing policies . The racist eruptions that result from neoliberal
policies and practices are cited, but race is imagined as a fixed category, where individual
racialized groups are seen as distinct and mapped onto neoliberal policy outcomes.
Neoliberalization is understood as a socioeconomic process that has racial implications, but little
is said about the ways that neoliberalism modifies the way race is experienced or understood in
society. We suggest that this theorization is incomplete . We recommend a move from
analyses of race and neoliberalism towards analyses that race neoliberalism. This kind of analysis
more clearly delineates how race and racism are inextricably embedded in the neoliberal project.
To begin the process of racing neoliberalism, it is essential to understand neoliberalism as a facet
of a racist society that works to both reinforce the racial structure of society, while also modifying
the processes of racialization. As other geographers have pointed out (McKitrrick 2006, Pulido 2006, Gilmore 2006) race
is a fundamental organizing principle in society. We suggest that there is a seductive, common-sense
logic to neoliberalism that reproduces racist ideologies. We highlight the fruitfulness of this way of understanding
race and neoliberalism in our case study.
AT K – ableism
The plan link turns ableism—decreasing the prison population would result in
less maltreatment of mentally ill inmates
Cohen, 13—a contributing editor at The Atlantic (Andrew, 12/14/13, "Government Watchdog: We Have a Growing Federal
Prison 'Crisis"', The Atlantic, www.theatlantic.com/national/archive/2013/12/government-watchdog-we-have-a-growing-federalprison-crisis/282341/)//emchen
But there are limits to how far the OIG is able and willing to go in criticizing the Justice Department and its Bureau of Prisons. There
are limits to where it has gone in 2013. And the report is a good reminder of where those limits are. For my money, the most
disturbing revelations this year about our prisons regard the ways in which mentally ill federal
inmates are being mistreated and abused . What did Horowitz and company say about that? Not nearly enough.
Just this single bureaucratic passage in which the OIG linked mental illness with solitary confinement: Finally, the
Department’s efforts to ensure the safety and security of its prison and detention facilities must
address the challenges relating to the mental health of its inmates and the impact of
correctional approaches such as solitary confinement on inmates’ mental health and recidivism
rates. For example, a July 2013 GAO report recommended that the BOP improve the timeliness of its
internal reviews relating to mental health services, develop a plan to evaluate treatment
programs , and update its formal policies related to mental health services. In February 2013, the
BOP also stated its intention to hire an independent auditor to assess its use of solitary confinement, and that review is now underway.
The OIG intends to monitor the BOP’s actions closely, including its responses to the GAO’s recommendations and the results of the
study of its use of solitary confinement, and will conduct additional work in this area as appropriate.
Perm
Ware 14 (Syrus, Masters in Sociology and Equity Studies, University of Toronto, “It Can't Be Fixed Because It's Not Broken:
Racism and Disability in the Prison Industrial Complex”, Disability Incarcerated: Imprisonment and Disability in the United States
and Canada)
Prisons' are dangerous places, especially if you are racialized and disabled. Because of the ways that
prisons are constructed, imagined, and maintained, rampant
ableism and racism affect the daily lives of many
prisoners. In this chapter, we explore how disability and experiences of racialization are constructed throughout the Prison
Industrial Complex (PIC) within the Canadian context (Turtle Island). Further, we contend that colonization, racism, and
ableism are inherent to the functioning of the penal system. The PIC is based on a set of interests
created and maintained to support capitalism, patriarchy, imperialism, colonialism, racism,
ableism, and white supremacy. It acts as a form of social control for the rich and powerful. As
such, it benefits politicians, governments, big businesses, developers, law enforcement, and the
nonprofit industrial complex. Angela Davis (2003) explains,To deliver up bodies destined for profitable punishment, the
political economy of prisons relies on racialized assumptions of criminality—such as images of Black
welfare mothers reproducing criminal children—and on racist practices in arrest, conviction, and sentencing
patterns. Colored bodies constitute the main human raw material in this vast experiment to
disappear the major social problems of our time. Once the aura of magic is stripped away from
the imprisonment solution, what is revealed is racism, class bias, and the parasitic seduction of
capitalist profit. The prison industrial system materially and morally impoverishes its inhabitants
and devours the social wealth needed to address the very problems that have led to spiraling
numbers of prisoners. (55)
AT CP – process focus bad
The CP’s attempt to bring us back into questions of process and
administration shifts debate away from the normative question that
legalization forces—this turns debate into a game of administrative tinkering
that trades off with a radical critique of the prison system
Murakawa 14, Associate Professor
[2014, Naomi Murakawa is an Associate Professor Center for African American Studies, “First Civil Right: How Liberals Built Prison
America.” ProQuest ebrary]
The history of liberal law-and-order matters because the same proposals for better administration,
likely to reproduce the same monstrous outcomes in the
twenty-first century . The problems of a normatively untethered liberal law-and-order regime
are clear in the arc of liberal positions on judicial discretion. Mid-century liberals viewed
discretion as dangerous individualized justice, tailored to each defendant from each judge’s moral
cloth in all its idiosyncratic textures. Judicial discretion lurked in law’s “twilight zone,” dispensing what Judge Marvin
proffered with the same good intentions, are
Frankel called “law without order.” Liberal fear of discretion endured through the mid-1980s, when one could easily characterize the
“mainstream liberal thought” as unambiguously opposed to discretionary administrative interpretation and implementation. 15 With
the rise of sentencing guidelines and mandatory minimums through the 1980s and 1990s, however, liberals called for more judicial
discretion by praising that which they previously reprimanded— justice customized to each individual defendant. 16 As a project
to control the irrationalities of racial bias and administrative discretion, liberal law-and-order
ignored empirical lessons and displaced normative questions. Reformers invoked the promises
and perils of “discretion” while ignoring the central findings of research. The American Bar Foundation’s
1957 survey and the myriad studies it inspired analyzed discretion within the “total criminal justice system.” As a system, carceral
machinery is not easily corrected by small administrative adjustments : tighten discretion
in one place, and the criminal justice system “accommodates,” to use the original language of the ABF studies,
so that discretion simply becomes more important for a different decision maker. Accommodation is
evident of sentencing guidelines and mandatory minimums, which diminished judicial discretion but effectively increased
prosecutorial discretion. When situated with a total system approach, the “amount” of discretion has neither increased nor decreased,
concludes Samuel Walker; it has simply moved from one agency to another. 17 Administrative
tinkering does not
confront the damning features of the American carceral state, its scale and its racial
concentration , which, when taken together reinforce and raise African American
vulnerability to premature death . By focusing on the intra-system problems of “discretion,”
lawmakers displaced questions of justice onto the more manageable, measurable
issues of system function . When framed as a problem of discretion— that is, individual decision making permissible by
formal rules— then solutions to racial inequality double back to individual administrators and
their institutional rules. In this sense, problematizing discretion forces questions of remediation
onto sanitary administrative grounds . Should judges be elected or appointed? Should
judges administer justice through sentencing guidelines? No guidelines and some mandatory
minimums? No mandatory minimums and only mandatory maximums? Will judges or parole
boards select the final release date? These questions matter, but they cannot replace clear
commitments to racial justice . When they are posed independently of normative goals,
process becomes the proxy, not the path, to justice . Without a normatively
grounded understanding of racial violence, liberal reforms will do the
administrative shuffle . This book traced a stark half-century turn from confronting white racial violence administered
and enabled by carceral apparatuses, to controlling black criminality through a procedurally fortified, race-neutral system. Race
liberals institutionalized the “right to safety” while skirting its animating call against state-sanctioned white violence. Fixation
administrative minutiae distracted from the normative core of punishment in a system of
on
persistent racial hierarchy. Unlike administrative tinkering, reforms for
decriminalization and decarceration would push debates to their normative core:
what warrants punishment, in what form, and why? 18 In place of liberal searches for the
ideal procedural path to life incarceration, metrics of racial justice should focus on what Ruth
Wilson Gilmore calls “the state-sanctioned or extralegal production and exploitation of groupdifferentiated vulnerability to premature death.” 19 Seeing racism as “group-differentiated vulnerabilities to
premature death” gives proper context to acts of violence between individuals. If we situate private violence in relation to groupdifferentiated reality, we begin to see the tight weave of state and private racial violence. An example often mobilized to repressive
ends is the fact that most crimes occur within rather than between racial groups, such that African Americans, Latinos, and Native
Americans confront high incarceration rates and high victimization rates. This is the complex story of the U.S. racial
state, where normal institutional and ideological processes perpetuate the multigenerational
transmission of accumulated advantage and accumulated disadvantage. 20 Accumulated advantage imparts
a presumption of innocence; inherited wealth enables home ownership in class-segregated areas (i.e., “a safe neighborhood”) and
medical insurance for diagnosis of conditions and coverage of various prescriptions such as Ritalin (i.e., more effective forms of
meth). In contrast, accumulated disadvantage imparts a presumption of guilt.
Their focus on process de-emphasizes race---this terminally prevents solvency
even if it gets people out of jail in the short-term
Alexander 10 – Professor of Law @ Stanford, highly acclaimed civil rights advocate
(Michele, “The New Jim Crow,” KU EBrary)//BB
Those who believe that advocacy challenging mass incarceration can be successful without
overturning the public consensus that gave rise to it are engaging in fanciful thinking, a form
of denial. Isolated victories can be won—even a string of victories—but in the absence of a
fundamental shift in public consciousness , the system as a whole will remain intact. To the
extent that major changes are achieved without a complete shift , the system will rebound .
The caste system will reemerge in a new form, just as convict leasing replaced slavery, or it will
be reborn, just as mass incarceration replaced Jim Crow.¶ Sociologists Michael Omi and Howard Winant make a
similar point in their book Racial formulation in the United Suites. They attribute the cyclical nature of racial progress to the "unstable
equilibrium" that characterizes the United States' racial order." Under "normal" conditions, they argue, state institutions are
able to normalize the organization and enforcement of the prevailing racial order, and the system functions
relatively automatically. Challenges to the racial order during these periods are easily marginalized or
suppressed, and the prevailing system of racial meanings, identity, and ideology seems "natural."
These conditions clearly prevailed during slavery and Jim Crow. When the equilibrium is disrupted, however, as in Reconstruc-tion
and the Civil Rights Movement, the state initially ivsisls. ilu-n .iiu-mpis to absorb the challenge through a series of reforms "that are.
the absence of a truly egalitarian
racial consensus, these predictable cycles inevitably give rise to new, extraordinarily
comprehensive systems of racialized social control .¶ ¶ One example of the way in which a well
established racial order easily absorbs legal challenges is the infamous aftermath of the Brown vs.
Board Education decision. After the Supreme Court declared separate schools inherently unequal
in 1954, segregation persisted unabated. One commenta¬tor notes: "The statistics from the Southern states are truly
if not entirely symbolic, at least not critical to the operation of the racial order. In
amazing. For ten years , 1954-1964, virtually nothing happened .'2* Not a single black child attended an
integrated public grade school in South Carolina, Alabama, or Mississippi as of the 1962—1963 school year. Across the South as a
whole, a mere 1 percent of black school children were attending school with whites in 1964—a full decade after Brown was
decided.2" Brown did not end Jim Crow; a mass movement had to emerge first—one that aimed to create a new public consensus
opposed to the evils of Jim Crow. This does not mean Brown v. Board was meaningless, as some commentators have claimed. Brown
gave critical legitimacy to the demands of civil rights activists who risked their lives to end Jim Crow, and it helped to inspire the
movement (as well as a fierce backlash).26 But standing alone
than Abraham Lincoln's emancipation Proclamation. A
Brown accomplished for African Americans little more
civil war had to be waged to end slavery; a mass
movement was necessary to bring a formal end to Jim Crow. Those who imagine that far less is
required to dismantle mass incarceration and build a new egalitarian racial consensus reflecting a
compassionate rather than punitive impulse toward poor people of color fail to appreciate the
distance between Martin Luter King Jr. s dream and the ongoing racial nightmare for those locked up
and locked out of American society.¶ The foregoing should not be read as a call for movement
building to the exclusion of reform work . In the contrary, reform work is the work of movement building,
provided that it is done consciously as movement-building work. If all the reforms mentioned above were actually adopted, a radical
transformation in our society would have taken place. The relevant question is not whether to engage in reform work, but how.
There is no shortage of worthy reform efforts and goals . Differences of opinion are inevitable about which
reforms are most important and in what order of priority they should be pursued. These debates are worthwhile, but it is critical to
how we do reform work is even more important than the specific
reforms we seek . If the way we pursue reforms does not contribute to the building of a movement to dismantle
keep in mind that the question of
the system of mass incarcera¬tion, and if our advocacy does not upset
the prevailing public consensus that supports
the new caste system, none of the reforms, even if won, will successfully disrupt the nation's
racial equilibrium. Challenges to the system will be easily absorbed or deflected , and the
accommodations made will serve primarily to legitimate the system, not undermine it . We
run the risk of winning isolated battles but losing the larger war .
The colorblindness of the CP ensures serial policy failure
Alexander 10 [Michelle, civil rights lawyer, advocate, legal scholar, and associate professor of law at Stanford Law School,
“The New Jim Crow,” pp. 102-103, omak]
These facts may still leave some readers unsatisfi ed.
The idea that the criminal justice system discriminates in
such a terrifi c fashion when few people openly express or endorse racial discrimination may
seem far-fetched, if not absurd. How could the War on Drugs operate in a discriminatory manner, on such a large scale, when
hardly anyone advocates or engages in explicit race discrimination? That question is the subject of this chapter. As we shall see,
despite the colorblind rhetoric and fanfare of recent years, the design of the drug war effectively
guarantees that those who are swept into the nation’s new undercaste are largely black and brown.
This sort of claim invites skepticism. Nonracial explanations and excuses for the systematic mass incarceration of people of color are
plentiful. It is the genius of the new system of control that it can always be defended on nonracial
grounds, given the rarity of a noose or a racial slur in connection with any particular criminal case. Moreover, because blacks and
whites are almost never similarly situated (given extreme racial segregation in housing and disparate life experiences), trying to
“control for race” in an effort to evaluate whether the mass incarceration of people of color is really about race or something else—
anything else—is diffi cult. But it is not impossible. A bit of common sense is overdue in public discussions
about racial bias in the criminal justice system. The great debate over whether black men have been targeted by the
criminal justice system or unfairly treated in the War on Drugs often overlooks the obvious. What is painfully obvious
when one steps back from individual cases and specifi c policies is that the system of mass
incarceration operates with stunning effi ciency to sweep people of color off the streets, lock them
in cages, and then release them into an inferior second-class status. Nowhere is this more true than in the War
on Drugs. The central question, then, is how exactly does a formally colorblind criminal justice system
achieve such racially discriminatory results? Rather easily, it turns out. The process occurs in two stages. The fi rst
step is to grant law enforcement offi cials extraordinary discretion regarding whom to stop, search, arrest, and charge for drug
offenses, thus ensuring that conscious and unconscious racial beliefs and stereotypes will be given free rein. Unbridled discretion
the damning step: Close the courthouse doors to all
claims by defendants and private litigants that the criminal justice system operates
in racially discriminatory fashion . Demand that anyone who wants to challenge racial bias
inevitably creates huge racial disparities. Then,
in the system offer, in advance, clear proof that the racial disparities are the product of intentional racial discrimination—
i.e., the work of a bigot. This evidence will almost never be available in the era of colorblindness,
because everyone knows—but does not say—that the enemy in the War on Drugs can be identifi
ed by race. This simple design has helped to produce one of the most extraordinary systems of
racialized social control the world has ever seen
AT CP – states – perm
Do both, that’s most ethical!
AT CP – states – fed key
Federal leadership is critical to guide state and local governments on crime
policies—empirics, collaboration, and research proves
Robinson, 8—Director, Criminology Master of Science Program, University of Pennsylvania, served as assistant attorney
general for the Office of Justice Programs in the U.S. Department of Justice from 1993 to 2000 (Laurie, “Restoring Federal
Leadership on Crime Policy”, Federal Sentencing Reporter, Vol. 20, No. 5, American Criminal Justice Policy in a "Change" Election
(June 2008), pp. 329-330, Published by: University of California Press on behalf of the Vera Institute of Justice, Jstore)//emchen
A resurgence of violence in many cities, cuts in municipal budgets, and difficulties in balancing antiterrorism and immigration
responsibilities with traditional crime fighting: these are the challenges currently facing state and
local law enforcement, according to conversations this summer with police chiefs and other criminal justice officials around
the country. One theme reiterated by the police chiefs is that the federal government has been “ missing in
action ” as a partner over recent years. In contrast to the 1990s, when Janet Reno’s Justice Department launched the
COPS Program and innovative community-based initiatives like drug courts and prisoner reentry, state and local criminal
justice has been a low priority for the Bush administration. It’s not only federal resources that are lacking from
Washington, although crime grants have certainly been slashed in the last eight years.1 There has also been greatly
diminished interest from the current administration in exercising federal leadership to address local
crime (which invariably, of course, stumbles into problems of concentrated poverty). A major agenda item for the incoming
administration—whether Republican or Democratic—is therefore to reengage as a partner with state and local
law enforcement, who view Washington right now as passive and disengaged. I am not suggesting here
that U.S. Attorney’s Offices jump into prosecuting even more garden-variety local crimes in federal court. That’s an existing trend that
squanders both federal resources and the value of federal prosecution. I am urging that the federal government again
become a leader and strategic partner with states and localities in figuring out the best ways
comprehensively to address crime. Criminal justice in the United States is largely, of course, a
state and local enterprise: the Bureau of Justice Statistics tells us that of all the adults convicted of felonies in the justice
system in 2004, 94 percent were convicted in state court, not the federal system.2 Ours is also a highly decentralized system—18,000
separate law enforcement agencies—as compared with most other countries around the world (Great Britain, for example, where a
federal leadership is essential in
addressing crime —not only to ensure citizen confidence in public safety and the fair administration of
justice but also to take on tasks like major crime research and collection of national
statistics , jobs that no local jurisdiction can tackle alone. This federal leadership role is particularly critical
mere fortyfive police agencies take their orders from the Home Office). Yet
today when we are seeing in some jurisdictions a rise in crime and violence, especially robberies, much of
it committed by very young people—after a decade in which it was consistently in decline.3 Federal leadership also
requires highlighting emerging issues and convening state and local players to address difficult
topics. That has not been the case, however, in recent years. It was the Police Executive Research Forum (PERF), not the Justice
Department, that sponsored two national symposia on the resurgence of violent crime in America. It is the Police Foundation, not
DOJ, that is convening a national gathering this summer to talk about the role of local law enforcement in handling immigration.
The permutation solves—federal cooperation with state is key to solve
perception, budgetary restrictions, credible research, and coherent solutions
Robinson, 8—Director, Criminology Master of Science Program, University of Pennsylvania, served as assistant attorney
general for the Office of Justice Programs in the U.S. Department of Justice from 1993 to 2000 (Laurie, “Restoring Federal
Leadership on Crime Policy”, Federal Sentencing Reporter, Vol. 20, No. 5, American Criminal Justice Policy in a "Change" Election
(June 2008), pp. 329-330, Published by: University of California Press on behalf of the Vera Institute of Justice, Jstore)//emchen
So what should a new administration do as it comes on board next January? Here is a brief agenda for the next transition
team to consider: 1. Make state and local public safety a major priority again. Recognize that a
significant part of this is about leadership from the federal government—not solely about large grant
programs. In addition to the bully pulpit and “convening authority,” that leadership can evidence itself as support for research,
training, technical assistance, gathering and issuance of statistics, and convening of practitioners to learn what works in reducing and
preventing crime and drug use. Those are very low-cost functions in the context of the federal budget. 2. Reach out
to law enforcement and other criminal justice groups for “listening sessions” to find out what they see as
priorities.The strong perception in state and local communities is that the Bush administration was
uninterested in partnership. Adding salt to the wounds, while public safety dollars from Washington have been reduced,
nearly $700 million was appropriated by Congress and signed into law by the president this summer to support law enforcement in
places like Mexico, Iraq, Afghanistan, and Central America.4 3. Reflect the priority given to state and local
criminal justice by ensuring that solid, experienced professionals are nominated to the Senateconfirmed positions in the Justice Department responsible for state and local justice systems. This includes the heads
of the Office of Justice Programs (OJP), the National Institute of Justice (NIJ), the Bureau of Justice Statistics (BJS), and the Bureau
of Justice Assistance (BJA). 4. Provide strategic federal leadership to break new ground in understanding
what causes crime and what we can do to prevent and control it. Aside from the occasional private
foundation, no one but the federal government supports knowledge building to help explore the science of crime. Yet Congress is
largely uninterested in social science: the Senate Appropriations Committee this summer, in fact, allocated no funding for that portion
of NIJ’s budget. In fact, at a time of tight budgets, we should be investing in evidence-based approaches
that can actually help reduce crime and stop funding programs that don’t work, even when they have
popular appeal. 5. Recognize, and bring to the table, players from all parts of the criminal justice system.
That includes pretrial, the courts, and indigent defense—not just law enforcement, prosecution, and corrections. During the Clinton
administration, we tried to ensure that all the players were in on the discussions and even launched a funding initiative for indigent
defense at Janet Reno’s request. It’s essential if we’re going to be successful in making the system work. 6. Make sure that
politics plays no part in the science functions of the Department—research and statistics. The
credibility—and integrity—of the research products of both NIJ and BJS require that they remain free and
independent of any policy and political considerations. Both agencies should control the content of their reports, as well
as the timing of their release. In 2005 those standards were violated: BJS Director Lawrence Greenfeld was demoted by the White
House. His offense? Objecting to his political superior’s attempts to delete key material from a press release describing a BJS racial
profiling study. 7. Ensure that the federal grant programs in the Justice Department are run with integrity and
without political favoritism. Recent hearings by the House FEDERAL SENTENCING REPORTER • VOL. 20, NO. 5 •
JUNE 2008330 Governmental Affairs Committee have questioned the manner in which grants at the Department’s Office of Juvenile
Justice & Delinquency Prevention have been handled in recent years.5 Grant making is a complex enterprise. Ensuring that the
process is fair—and apolitical— is critical. A high priority for the new administration should be to take steps to
ensure this. A key resource to call on is the expertise among OJP’s career ranks, both current and retired. The federal criminal justice
assistance program has a rich tradition going back to the days of the Lyndon Johnson crime commission.6 Over the intervening years,
through administrations of both parties, it has largely thrived in partnership with state and local criminal justice officials. The last eight
years, however, have strained those relationships. While many state and local criminal justice leaders talk with nostalgia of the days of
Janet Reno, the Crime Bill, and the COPS program, this is not about specific people or past programs. Whether it is President McCain
should foster the kind of innovative
partnerships that existed during the 1990s but then strive to take them to new heights to meet
the greater public safety challenges of today.
or President Obama who is sworn in next January, his administration
AT CP – states – fed key – drugs
Federal drug action is key---states follow federal leadership
Beckett 97 – Professor of Law @ U Washington
(Katherine, “Making Crime Pay: Law and Order in Contemporary American Politics,” p. 92)
As discussed earlier, the U.S. federalist system allocates to the national government a quite minor role in the fight against
conventional street crime. In creating the funding programs described above, however, the federal government began the process of
altering this institutional framework. Because the Harrison Narcotics Act of 1917 assigned the federal government a significant degree
of responsibility for the en-forcement of narcotics laws, crusading against drugs provided another means by which the federal
government could exercise leadership in this arena. Indeed, as Zimring and Hawkins point out, the resurgence and
expansion of the war on drugs represent "the most significant experiment in enlarging the federal
lead in .. . crime control in this century" and was, in this sense, an obvious replacement for the war on crime of the
1960s.17 As a result of federal leadership in the anti-drug campaign, state and local law
enforcement agencies have also made fighting drugs a top priority and most states have followed
the federal government's lead in adopting tougher sentencing statutes for drug offenders.
Prisoners in state prisons are largely drug offenders—only the plan’s federal
mandate solves
DPA, 6/12/15 (“The Drug War, Mass Incarceration and Race”, Drug Policy Alliance,
http://www.drugpolicy.org/sites/default/files/DPA_Fact_Sheet_Drug_War_Mass_Incarceration_and_Race_June2015.pdf)//emchen
the world's leader in incarceration with 2.2 million people currently in the
nation's prisons and jails — a 500% increase over the last forty years. Changes in sentencing law and
policy, not changes in crime rates, explain most of this increase. These trends have resulted in prison
overcrowding and fiscal burdens on states to accommodate a rapidly expanding penal system, despite
increasing evidence that large-scale incarceration is not an effective means of achieving public safety. Sentencing policies of the War
on Drugs era resulted in dramatic growth in incarceration for drug offenses. Since its official beginning in
the 1980s, the number of Americans incarcerated for drug offenses has skyrocketed from 41,000 in
1980 to nearly a half million in 2013. Furthermore, harsh sentencing laws such as mandatory minimums
keep people convicted of drug offenses in prison for longer periods of time: in 1986, people released after
serving time for a federal drug offense had spent an average of 22 months in prison. By 2004, people convicted
on federal drug offenses were expected to serve almost three times that length: 62 months in prison. At the
federal level, people incarcerated on a drug conviction make up half the prison population. At the
state level , the number of people in prison for drug offenses has increased ten-fold since 1980. Most of
The United States is
these people are not high-level actors in the drug trade, and most have no prior criminal record for a violent offense.
AT CP – states – squo solves
States solve now---the plan aligns federal efforts with status quo gains at the
state level
Hamilton, Criminal Law Scholar, University of Houston Law Center; J.D., The University of Texas School of Law; Ph.D., The
University of Texas at Austin, 19 April 2014
(Melissa, “PRISON-BY-DEFAULT: CHALLENGING THE FEDERAL SENTENCING POLICY’S PRESUMPTION OF
INCARCERATION”, pg 1334, jstor)
The federal sentencing system is facing a host of newly offered criticism for its role in
contributing to the country’s shameful recent experience with mass incarceration. The federal
prison system keeps reaching records for the number of prisoners it houses and the rate at which
it incarcerates its own residents. A main contributor to those statistical measures is the
plummeting rate at which federal defendants are sentenced to nonprison sentences. In turn, as this
Article posits, a major source of that statistic is the U.S. Sentencing Commission, which earlier on adopted,
and has continued to maintain, various prison-by-default policies in its Sentencing Guidelines. The
federal judiciary, though used to issuing nonprison sentences in about half the cases before the Sentencing Reform Act of 1984,
has seemed to unfortunately follow the Commission’s guidance with respect thereto, considering that
since then sentences include prison in a substantial majority of cases. Circumstances have changed, though, for
political, financial, philosophical, and pragmatic reasons, and presumptive prison sentencing
practices are being questioned by important figures interested in criminal justice and fiscal issues .
An unlikely confederation of ideologically diverse individuals and groups are on board, as is the
Department of Justice. This Article makes the case that a timely change in federal sentencing policy is appropriate that would
reverse the presumption that a prison term is virtually always necessary. Both the Sentencing Commission and the
federal judiciary should replace these policies and practices with a normative culture that
envisions a prison sentence as only appropriate when certain facts and circumstances unique to
the individual case indicate that a prison term is the least restrictive alternative. Such a policy
would have various benefits, such as reducing incarceration rates, alleviating prison
overcrowding, fostering rehabilitative potential, providing just sentencing, protecting the
individual and the community better, and, more broadly, aligning the federal system with
state and global norms of sentencing .
States are reforming prisons now – federal prison reform is key
Saris 13 - Chief United States District Judge for the United States District Court for the District of Massachusetts, J.D. from
Harvard, B.A. from Radcliffe College
Patti B. Saris, 7/18/2013, “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences”,
http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-andreports/submissions/20130918_SJC_Mandatory_Minimums.pdf, 7/6/2015, BD
Since 2011, circumstances have made the need to address the problems caused
by the∂ Current
mandatory minimum penalties still more urgent. Even as state prison populations have∂ begun to
decline slightly due to reforms in many states, the federal prison population has∂ continued to
grow, increasing by almost four percent in the last two years alone and by about a∂ third in the
past decade.3∂ The size of the Federal Bureau of Prisons’ (BOP) population exceeds∂ the BOP’s capacity by 38 to 53 percent on
average.4∂ Meanwhile, the nation’s budget crisis has∂ become more acute. The overall Department of Justice budget
has decreased, meaning that as∂ more resources are needed for prisons, fewer are available for
other components of the criminal∂ justice system that promote public safety. Federal prisons and detention
now cost more than $8∂ billion a year and account for close to one third of the overall Department of Justice budget.5 ∂ For these
reasons, the Commission feels even more strongly now than in 2011 that congressional∂ action is necessary and has also identified
reducing costs of incarceration as a Commission∂ priority for this year.6
The states CP is the squo - States already have implemented anti overcrowding measures – it’s only a question of federal government prisons
Vigne and Samuels 12, (Nancy La Vigne, Director at Justice Policy Center and PhD in criminal justice from Rutgers
University, Julie Samuels, MPP from the Graduate School of Public Policy, University of California at Berkeley, “The Growth
&Increasing Cost of the Federal Prison System: Drivers and Potential Solutions”, Urban Institute Justice Policy Center)
As with the federal system, states across the country have also experienced burgeoning∂ criminal justice
populations and costs. Many have implemented policies to control the∂ growth and increase the
effectiveness of spending to enhance public safety goals. These∂ policies include both legislative
and administrative measures that change diversion∂ practices; revise sentencing laws; adjust good
time and earned time provisions for∂ incarcerated offenders; improve community corrections to
reduce the likelihood of∂ recidivism and the return of offenders to prison for technical violations;
employ risk and∂ needs assessment tools more consistently across the criminal justice system;
and improve∂ correctional and supervision practices to be more consistent with evidence-based
practices.∂ While some aspects of the federal system differ from the states, many lessons can be learned∂ from the state
experience. Chief among them is the need for the federal government to∂ enhance its community corrections capabilities and resources
as it develops strategies to∂ contain its institutional population and accompanying costs.
Trends are showing States are taking measures to reduce their prison
population
ACLU, American Civil Liberties Union, 2013 (The Journalist’s Guide to Criminal Justice Reform 2013, pg 2,
https://www.aclu.org/files/assets/aclu-justice_reform_final-1.pdf)
The last 40 years have witnessed an American penal system dominated by unrelenting growth, with
incarceration aggressively implemented at almost every level, from local to federal. Under this punitive regime, penal reform has
faced an impenetrable wall of legislative resistance, and the consequences are well documented: a fivefold increase in the country’s
overall correctional population, striking racial and ethnic disparities within that population, and tremendous social and financial costs.
However, these
dynamics are shifting. In nearly every state, there is increasingly a political
premium on containing correctional costs, scrutinizing proposals for further
growth, and opening the door to consideration of strategies—most of them out of
the question just a few years ago—for downsizing correctional populations and
budgets. This shift represents an extraordinary opportunity. By various means, four states—New
York, New Jersey, Michigan, and California—have
significantly reduced their prison populations in the last
several years. In New York, for example, reductions in felony arrests coupled with increases in
nonprison sentences have shrunk the prison population by nearly 25%. In New Jersey, higher
parole-grant rates due to litigation, reforms related to drug-crime sentencing, and reductions in
parole revocations have similarly reduced the prison population by nearly 25%. In Michigan,
reductions in parole revocations plus a higher parole-grant rate have lowered the prison
population by 17%. And in California, beginning in 2007 with legislative efforts to increase the
use of probation, and amid financial incentives following a federal court order to depopulate, the
state prison population has declined by nearly 25,000, or 13%. Other states, including Colorado and
Washington, have also shown modest reductions.
The states are reforming their prisons now—the counterplan is the status
quo—also disproves the “spill up” claim
Lamparello, 1—B.A. from University of Southern California, Associate Professor of Law Mercer University Walter F. George
School of Law, and Associate Attorney (Adam, "Reaching Across Legal Boundaries: How Mediation Can Help the Criminal Law in
Adjudicating "Crimes of Addiction"", Ohio State Journal on Dispute Resolution, Lexis)//emchen
Drug courts are paradigmatic examples of alternative dispute resolution mechanisms that reject the traditional punishment paradigm in adjudicating drug
offenders. 159 In doing so, the drug courts have discovered the promise of rehabilitation and demonstrated the compatibility of utilizing rehabilitation in
an alternative dispute resolution forum. In this part, I examine the efficacy of three such programs in New Jersey, Florida, and Oklahoma. 1. The New
Jersey Experiment: A Success Story for Rehabilitation In
New Jersey, non-violent drug offenders are now diverted from the
on an ambitious
traditional criminal process. In these cases, most participants plead guilty, waive their right to a trial, and then embark
alternative treatment program. 160 Subsequent to their guilty plea, drug offenders are assigned to judges, prosecutors, public defenders,
and treatment experts, who, instead of punishment, design a plan of treatment and rehabilitation for [*363] the offender. 161 Instead of working against
each other, prosecutors, defense lawyers, and even judges collaborate on the best method to lead an offender onto the path of recovery. 162 Since its
implementation in May 1997, more than 300 adults have experienced New Jersey's Drug Treatment program in lieu of the criminal courts. 163 The
By implementing rehabilitation, these
programs are effectively reducing recidivism rates among drug offenders in New Jersey. For example, a study
success of this program has been laudable in comparison to the criminal courts.
conducted by the State Department of Corrections found that the recidivism rate for drug offenders who were processed through drug court was a mere
twenty-three percent. 164 In Essex County alone, of the sixty adults who have gone through the drug treatment program, only one individual has been
charged with a new offense. 165 Conversely, the rate for those offenders who were adjudicated through the traditional criminal process and given prison
terms was seventy percent--three times as high. 166 At the national level, the recidivism rate for repeat offenders who are [*364] processed through the
criminal courts is even higher--at seventy-seven percent. 167 Furthermore, because of their success, the drug courts in New Jersey have received the
imprimatur of judges, prosecutors, and public defenders. 168 Assistant Deputy Public Defender Yvonne Segars suggests the drug courts is "one of the
best things that's happened in criminal jurisprudence in decades." 169 Attorneys are also heralding the informal structure of the drug courts. Essex County
Prosecutor Joseph Donahue explains, "if you sat in one of the meetings, I'm not sure you'd know who was the prosecutor and who the public defender . . .
it's not in the true sense adversarial--we're not playing our traditional roles." 170 Essex County Superior Court Judge Paul Vichens also lauds the
program, stating, "I don't speak through a lawyer. I speak to the participants every week. We talk about problems and good things happening in their
lives." 171 The program is so popular with legal personnel that one judge is even making house calls to monitor the status of drug offenders in the
program. 172 In addition, drug
courts, as opposed to the criminal courts, are saving New Jersey a
significant amount of financial resources
. While it costs ninety dollars a day to keep a drug offender in jail, the cost at a
treatment center [*365] ranges from forty-five to sixty-five dollars per day. 173 Bruce Stout, Governor Whitman's senior policy advisor, confirms that it
costs less to treat offenders than to put them in prison. 174 Moreover, Assistant Attorney General Ronald Susswein explains that "financial benefits are
undeniable if savings from the drop in recidivism are added to the revenue created when participants pay taxes." 175 The program in New Jersey is
successful because both the community and the offender benefit from the reduction in drug activity. Whereas criminal courts have been ineffective in
reforming drug offenders, 176 the drug courts are a proven-and hopefully lasting-success in eradicating the offender's addiction. Ultimately, this benefits
the community in two ways. First, the public safety is enhanced through a reduction in drug activity and drug-related crimes. Second, reformed offenders
have the opportunity to become productive members of their respective communities. As Susswein states, "'You get better results, greater public safety,
savings in tax payer money,' and . . . 'if this breaks the cycle of addiction, what could be better than that?'" 177 In New Jersey, drug courts, as an
alternative dispute resolution mechanism, are an undeniable success in part because of their emphasis on rehabilitation, not retribution. [*366] 2. The
Florida Initiative: Rehabilitation in Action Since its inception in 1996, Florida drug courts are becoming primary tools in the battle against drug addiction.
178 As in New Jersey, individuals who are convicted of non-violent drug possession are now being diverted from the traditional criminal courts in favor
of Florida's drug court paradigm. 179 The drug courts strive to alleviate the substance abuse problems that afflict many offenders, and judges are granted
increased discretion to fashion programs that respond to the needs of individual participants. 180 Once an offender is accorded a treatment program, he
undergoes regular status hearings and counseling sessions that monitor the progress of the respective offender. 181 Indeed, the supervision in the drug
court program is often more intensive than in the correctional system. 182 As in New Jersey, by alleviating the substance abuse problem, the drug courts
in Florida are significantly reducing the recidivism rate among these offenders. In Duval County, Florida, the recidivism rate for drug offenders is an
astonishing 0.7%. 183 Similarly, in Okaloosa County, Florida, the recidivism rate stands at 6%. 184 Furthermore, the drug treatment programs in Florida
are assisting in overall community safety. In a statewide study of Florida drug courts, less than 20% of all participants were re-arrested for violent
misdemeanor or felony violations. 185 These accomplishments are astonishing in contrast to the recidivism rates for offenders who did not undergo
treatment for their addiction. In Florida alone, the recidivism rate for offenders who go [*367] untreated through the drug courts is 70%. 186 Clearly, this
data demonstrates that the rehabilitation model is a significant factor in Florida's successful battle against crimes of addiction. Florida
drug courts are receiving widespread approbation because their rehabilitative approach seeks to address the insidious addictions that underlie
these crimes. James R. McDonough, Director of the Florida Office of Drug Control, supports utilization of the drug courts, "what they do is get to the
core of the problem." 187 This is especially important because many crimes of addiction are motivated by substance abuse problems. "They
either committed the crime to get the drug or they were high on the drug when they committed the crime." 188 McDonough explains that if drug
treatment is not embraced, "what happens is the average inmate gets out after forty-eight months and goes right back to the culture he came from . . .
he is still an addict, he still has those tendencies or cravings to go to drugs." 189 Because of their success in fighting the addiction problem, Governor Jeb
Bush has endorsed the drug court effort, recently calling for greater expansion of the drug courts in Florida's effort to reduce the 1.2 million drug users
estimated to exist in Florida. 190 The expansion of the drug courts and its widespread support stem from the fact that they are getting results and
Florida is also saving a
significant amount of financial capital. Under Florida's drug courts, the average cost of treating a drug defendant is approximately $
eradicating a problem that has consistently plagued the traditional courts. In accomplishing these objectives,
1,800 per year. 191 This figure pales in comparison to the $ 26,000 it costs per year to keep an offender in prison. 192 However, the savings in money
represent only the beginning. By rehabilitating addicted offenders, these individuals have the opportunity to become contributing members of society.
Drug Program Administrator Carl Reeves contends, "if we get people clean and find them employment, they're going to pay taxes instead of making us
pay for them in the jails." 193 There [*368] are now thirty-two drug courts in Florida, 194 and the plans for expansion amount to a realization that
rehabilitation is working, and through this, the community, the state, and even the offender, are benefiting. 3. Rehabilitation in Oklahoma: An Emerging
Success Oklahoma has adopted an approach similar to New Jersey, as non-violent drug-offenders are now being diverted to treatment programs
in lieu of punishment. Each drug court consists of a team that includes representatives from law enforcement, judicial, and treatment fields. To qualify for
the program, offenders must plead guilty to their drug-related charges, waive the right to a trial, sign a contract with the court, and agree to a treatment
plan. 195 Once participants enter the program, they undergo frequent supervision by the court. 196 As part of their negotiated pleas, participants must
scrupulously adhere to the treatment plan, or face prison terms. 197 Participants in the program traditionally volunteer for the drug courts rather
than experiencing the criminal court system. 198 As in New Jersey and Florida, drug courts in Oklahoma are reducing the recidivism rate. The drug court
in Seminole County, Oklahoma celebrates that 80% of drug court participants have not committed new crimes. 199 In Pontotoc County, District Judge
Tom Landrith similarly reports that 80% of participants in their drug program have not committed new offenses. 200 [*369] Furthermore, District Judge
Charles Hill asserts that the
majority of offenders who utilize drug court are eradicating their addictions
and becoming productive members of their communities. 201 While it costs the state $ 15,000 a
year to keep someone in prison, the average cost of treating addiction is only $ 2,800 per year. 212
In Oklahoma County alone, the drug court has saved the county almost $ 1.9 million in less than a year. 213 McCaffrey re-enforces this sentiment, stating
that "the first thing you do is save the cost to the prison system." 214 The
rise, and subsequent success of drug courts, is not
surprising because it focuses on the substance abuse problems that lie at the heart of crimes of [*371]
addiction. 215
States are implementing prison reforms now—but structural problems mean
they can’t solve
La Vigne, 14—director of the Justice Policy Center at the Urban Institute, Ph.D. (Nancy G., 7/15/14, “Lessons from the States:
Responsible Prison Reform”, speech before the United States House of Representatives, Urban Institute,
http://www.urban.org/sites/default/files/alfresco/publication-pdfs/904631-Lessons-from-the-States-Responsible-PrisonReform.PDF)//emchen
Lessons from the States Without a doubt, in recent years the states have demonstrated tremendous leadership
on correctional reform. As detailed in our recent Justice Reinvestment Initiative (JRI) State Assessment Report,1 which
highlights the experiences of 17 states, this leadership is characterized by (1) a bipartisan commitment to reform; (2) the use of data
on current sentencing and corrections practices to inform policy; (3) a focus on responsible reform designed to reserve prison for those
who pose the greatest risk to public safety; and (4) the expanded use of evidence-based practices (EBPs). Among these comprehensive
reform efforts, many JRI states have slowed prison growth, reduced overcrowding, and saved taxpayers
money without sacrificing public safety and other states are projected to do so. The crime rate in almost all of states that have
reduced their prison populations has continued to decline.2 The experiences of the states can be instructive; as illustrated in Figure 1,
the state incarceration rate has remained largely constant for the past decade while the federal
incarceration rate has grown by over a third . Given the wealth of information and lessons documented on the
state experience in our JRI assessment report, I respectfully request that the report be submitted in its entirety into the record. While
state prison systems differ significantly from the federal system, many drivers of prison population growth
remain the same. These include prison commitments and lengths of stay over time. For example, some of the growth in state systems
was driven by increases in truth-insentencing requirements, often requiring an 85 percent threshold for violent offenders and some
lower threshold for nonviolent offenders. The Violent Offender Incarceration and Truth-inSentencing Incentive (VOI/TIS) Grant
Program, authorized by the Violent Crime Control and Law Enforcement Act of 1994, further incentivized states to adopt an 85%
truth in sentencing threshold with funding to build or expand prisons and jails.3 Faced with high prison populations and
shrinking budgets , however, many states recently revised their time served requirements to allow
for earlier release. These states have recognized that certainty, as a crucial attribute in the sentencing process (especially for
victims and victims’ advocates), 4 is not compromised by lowering time served thresholds as long as the change is well publicized.
Given that with very few exceptions federal inmates must serve over 87 percent of their sentence, these policy changes are quite
instructive. Another means by which states reversed lengthy prison sentences is by expanding sentence reduction or early release
programs for offenders who comply with prison regulations and programming requirements. At least 31 states offer inmates the
opportunity to earn sentencereduction credits through participation in education, vocational training, substance abuse
AT CP – states – plan solves states
Ending mandatory minimum prison sentences and adopting a rehabilitative
prison model solves—spills over to state and local levels
Mauer and Cole, 5/23—*executive director of the Sentencing Project **professor of law and public policy at Georgetown
University (Marc Mauer and David Cole, 5-23-2015, "How to Lock Up Fewer People," New York Times,
http://www.nytimes.com/2015/05/24/opinion/sunday/how-to-lock-up-fewer-people.html)//emchen
WHEN Hillary Rodham Clinton, Ted Cruz, Eric H. Holder Jr., Jeb Bush, George Soros, Marco Rubio and Charles G. Koch all agree
that we must end mass incarceration, it is clear that times have changed. Not long ago, most politicians believed the only tenable
stance on crime was to be tougher than the next guy. Today, nearly everyone acknowledges that our criminal
justice system needs fixing, and politicians across the spectrum call for reducing prison sentences for low-level drug crimes
and other nonviolent offenses. But this consensus glosses over the real challenges to ending mass
incarceration. Even if we released everyone imprisoned for drugs tomorrow, the United States would still have 1.7 million
people behind bars, and an incarceration rate four times that of many Western European nations. Mass
incarceration can be ended. But that won’t happen unless we confront the true scale of the problem. A hard-nosed skeptic
would tell you that fully half the people in state prisons are serving time for violent offenses. And most drug offenders behind bars are
not kids caught smoking a joint, but dealers, many with multiple prior convictions. We already have about 3,000 drug courts diverting
those who need it to treatment rather than prison. Recidivism remains astonishingly high for those we release from prison, so releasing
more poses real risks. And criminal law is primarily enforced by the states, not the federal government, so this is not a problem the
next president can solve. To move beyond symbolic sound bites to real progress, we need to address each of these
objections in turn. It’s true that half the people in state prisons are there for a violent crime, but not all individuals convicted of violent
crimes are alike. They range from serial killers to minor players in a robbery and battered spouses who struck back at their abusers. If
end mass incarceration, we need to recognize that the excessively long sentences we
impose for most violent crimes are not necessary, cost-effective or just. We could cut
sentences for violent crimes by half in most instances without significantly undermining deterrence
or increasing the threat of repeat offending. Studies have found that longer sentences do not have
appreciably greater deterrent effects; many serious crimes are committed by people under the influence of
alcohol or drugs, who are not necessarily thinking of the consequences of their actions, and certainly are not
we are going to
affected by the difference between a 15-year and a 30-year sentence. For the same conduct, we impose sentences on average twice as
long as those the British impose, four times longer than the Dutch, and five to 10 times longer than the French. One of every nine
people in prison in the United States is serving a life sentence. And some states have also radically restricted parole at the back end.
As a result, many inmates are held long past the time they might pose any threat to public safety.
Offenders “age out” of crime — so the 25-year-old who commits an armed robbery generally poses much less risk to
public safety by the age of 35 or 40. Yet nearly 250,000 inmates today are over 50. Every year we keep older offenders
in prison produces diminishing returns for public safety. For years, states have been radically
restricting parole; we need to make it more readily available. And by eliminating unnecessary parole
conditions for low-risk offenders, we can conserve resources to provide appropriate
community-based programming and supervision to higher-risk parolees. It’s true that most individuals
incarcerated for a drug offense were sellers, not just users. But as a result of mandatory sentencing laws ,
judges often cannot make reasonable distinctions between drug kingpins and street-corner pawns. We
ought to empower judges to recognize the difference , and to reduce punishment for runof-the-mill offenders, who are often pursuing one of the few economic opportunities available to them in destitute
communities. The single most important thing we can do is provide meaningful work opportunities to the most disadvantaged. There
are already drug courts in many American communities, and studies show they can reduce substance abuse
without incarceration. But the criteria for diversion are often unduly narrow, and they screen out
substantial numbers of drug users who could benefit from treatment. Equally important, we should not limit our
response to those who have been arrested. Part of winding down the “war on drugs” will require making
treatment options more widely available , before individuals enter the criminal justice
system. Recidivism is also a serious obstacle to reform. Two-thirds of released prisoners are rearrested within
three years, and half are reincarcerated. But many of the returns to prison are for conduct that violates
technical parole requirements , but does not harm others. And much of the problem is that the scale and
cost of prison construction have left limited resources for rehabilitation, making it difficult for
offenders to find the employment that is necessary to staying straight. So we need to lock up fewer people on the front end
as well as enhance reintegration and reduce collateral consequences that impede rehabilitation on
the back end. Criminal justice is administered largely at the state level; 90 percent of those incarcerated are in state and local
facilities. This means mass incarceration needs to be dismantled one state at a time. Some states are already making substantial
progress. New Jersey, California and New York have all reduced their prison populations by about 25 percent in recent years, with no
increase in crime. That should be good news for other states, which would reap substantial savings — in budgetary and human terms
the federal government cannot solve this problem alone, it can lead
both by example and by providing financial incentives that encourage reform.
— if they followed suit. While
AT CP – states – state judges takeout
State judges undercut the CP
Boylan and Mocan 14 - Professor of Economics as well as an associate for Brown College at Rice University, Ph.D. at
CalTech; Ourso Distinguished Chair of Economics∂ Research Associate, National Bureau of Economic Research (NBER)∂ Research
Fellow, Journal of Labor Research∂ Associate Editor, Professor at Lousiaina State University
Richard T. Boylan and Naci Mocan, 2014, Journal of Law, Economics, and Organization, “Intended and Unintended Consequences of
Prison Reform”, 6/7/2015, \\BD
Similarly, it is unclear whether courts have improved prison conditions ∂ (Harriman and Straussman 1983; Taggart 1989; and Fliter
1996).2 This is∂ not surprising as the judicial process is expected to be ineffective in reforming∂ prisons
and mental hospitals, because most state judges are elected for∂ short terms. As a result, they are
expected to put less weight on the welfare∂ of individuals who are not allowed to vote (such as
prisoners and individuals∂ who are deemed incompetent to vote). Federal judges, on the other∂ hand, are appointed
for life and thus can force massive prison releases ∂ without facing negative personal
consequences. The political insulation∂ of federal judges can explain the recent court order to release inmates∂ from California
state prisons, Brown v. Plata, 563 US 1910 (2011).
AT CP – states – theory
50 State fiat is illegitimate and a voting issue:
Not real world – states have never mandated the exact same policy and never
will
Destroys predictability- no literature against a uniform state decision kills our
ability to generate offense against the counterplan
Multi agent fiat bad – explodes research burden on the aff, makes it
impossible to account for every actor
Kills topic specific education- we are forced to debate about things like
federalism instead of focusing on the warrants of the plan or even the
resolution
No solvency advocate – make them read a solvency advocate for every state
otherwise it allows utopian CP’s like text: the usfg should end all racism
Single Agent counterplans and disads solves their offense- it tests the agent we
choose within the USFG - the net benefit is topic specific education grounded
in the resolution
Its a voting issue to ensure competitive equity and education
AT DA – crime
There is no statistical evidence that mandatory minimums solve crime – only
a risk it hurts reentry and enhances the drug trade
Mauer 10 - Helen L. Buttenweiser Award from the Fortune Society (1991), the Donald Cressey Award from the National
Council on Crime and Delinquency for contributions to criminal justice research (1996), the Alfred R. Lindesmith Award from the
Drug Policy Alliance for achievement in drug policy scholarship (2003), the Maud Booth Correctional Services Award from
Volunteers of America (2008), the John Augustus Award from the National Association of Sentencing Advocates (2009), the
Margaret Mead Award from the International Community Corrections Association (2009), and the Inside/Out Summit Award from
Centerforce (2011). B.A. at Stony Brook University, Masters of Social Work at University of Michigan
Marc Mauer, July/August 2010, “The impact of mandatory minimum penalties in federal sentencing”,
http://search.proquest.com.proxy.lib.umich.edu/docview/749942323?pq-origsite=summon&accountid=14667, 7/6/2015, BD
Mandatory minimum penalties have been enacted over time for a variety of reasons. Foremost among these are legislators' professed
belief thai such penalties will bring greater certainty to the sentencing process and that they will "send a message" to potential
offenders that specified behaviors will be met wirb harsh and certain punishment. ∂ Looking at the experience of the past several
decades, some observers have contended that mandaioiT minimums, including such federal penalties, have produced significant
benefits in reducing crime. At a 2009 congressional hearing, for example, former U.S. Attorney Michael J. Sullivan asked, "Has the
role that Congress played in sentencing, including the passage of mandatory minimum semences, had an impact on public safety and
crime?" He concluded thai "The answer to lhat question can easily be found in crime statistics and is buttressed by anecdotal story
after story from across our nation. Crime rates over the past 30 years certainly paini a picture of continuing success of reducing crime
and victimization through sound public policy."1∂ What, then, do we know about the extent to which federal mandatory penalties have
date, there is virtually no data that is capable of demonstrating a
direct link between federal mandatory penalties in particular and any declines in crime. Further,
a broad range of research suggests that it is quite unlikely that these penalties would have such an
impact.∂ In examining the effect of lederai mandatory penalties, the key data problem is that the lederai court system handles only a
been responsible for declines in crime? To
small fraction, less than 10 percent, of all criminal cases. Therefore, attempting to draw any conclusions about die specific impact of
federal mandatory pennliics on crime rates Js fraught with imprecision. To state that the adoption of such penalties by Congress in the
1980s was directly responsible for reductions in a wide variety of crimes that are generally prosecuted in state conns requires a great
leap of failli that is not supported by the evidence.∂ We can see this most clearly in the realm of drug offenses,
the category in which federal mandatory penalties most often apply. Since drug offenses are widely
prosecuted in both state and federal courts, a potential offender has no means of knowing in which court
system he or she would be likely to be prosecuted (assuming, of course, that the offender is even thinking about the
prospects of apprehension). Therefore, it is virtually impossible to break out any uniquely iedemi impact of mandatory sentencing.∂
Even asido from this problem, measuring the impact of harsh sentencing policies on crime rates is a complex undertaking. While it is
the case that crime rates have a ve generally been declining; since Mie early 1990s and that this has taken place at a lime when the
prison population was rising, this does not necessarily suggest that there is a clear and unambiguous
relationship between these two factors. Just prior io Hie beginnings of the crime decline, in the period 1 984-91.
incarceration rates increased substantially and yet crime rales increased as well.∂ Looking a bit more
expansively, a comparison of n ends in the U.S. and Canada in recent decades, is instructive. While there has been a great deal of
attention focused un the L". S. e l'ime decline of the 1990s, simitar declines were achieved in Canada as well, yet
these occurred ubile the prison population was actually declining . Thus, we should be exceedingly
careful in attributing any substantial causal effect between rising incarceration and declining
crime rates.∂ While incarceration has some impact on crime, this e fleet is generally more modest than many believe. The most
optimistic research to date on the crime decline of the 1090s finds that 25 percent of die decline in violent crime can be attributed to
rising imprisonment." but other scholarly work concludes that this effect may be as small as 10 percent.3 And in either case, such
studies do not tell us whether using resources to support expanded incarceration is more effective
than targeted social interventions, such as expanded preschool programming, substance abuse
treatment, or improving high school graduation rates, all of which have been demonstrated to
improve public safetv outcomes. Further, the rise tu mcarceration over lhe past two decades is a function of a range of
factors, including increased drug arrests, harsher sentencing policies, red tic ed parole releases, and increased parole revocations.
Federal mandatory sentencing penalties plav a relatively small role in this overall scheme.∂ While
there is little relevant data on the overall impact of federal mandatory penalties, there is nonetheless a broad range of evidence that
suggests that it is unlikely that mandatory penalties for drug offense uses have a significant impact on
enhancing public safety. This is the case for several reasons:∂ Deterrence is primarily a function of the
certainty, not severiy, of punishment To the extent that sentencing policies may deter individuals from engaging in dime,
the research literature generally shows that increases in the certainty of punishment are much more likely to
produce an effect than enhancements to the severity of punishment. That is. if we can increase the prospects
that a given offender is apprehended. some persons will he deterred by that knowledge. But merely extending the amount
of punishment that will be imposed, when most offenders don't believe they will be apprehended,
does little to add to any deterrent effect. In this regard, mandatory penalties increase severity, but have no direct impact
on increasing certainty, and are therefore not likely to provide any significant additional deterrent effects. ∂ Mandatory penalties are
particularly ineffective in addressing drug crimes. While there is an ongoing debate aboui tile effect of imprisonment on reducing
crime, drug offenses are particularly immnne to being affected by more and longer prison terms.
This is largely due to the "replacement" nature of these offenses, the fact thai there is a virtually
endless supply of potential offenders in t lie drug trade. Since the vast majority of incarcerated drug offenders are
from the lower and middle ranks of the drug trade, their imprison meni in effect creates a 'job opportunity" Ibi
someone else seeking to earn some qnick money. As long as there is a demand for illegal drugs, there will be a large
pool of potential sellers, as evidenced by the fact that the number of pet sons incarcerated for a drug offense has increased by more
than 1000 percent since 1980. Since federal mandatory penalties are disproportionately employed for drug offenses, this suggests
that their overall impact is similarly limited.∂ Mandatory penalties may adversely affect recidvism. Whatever one may
think about the wisdom of mandatory sentencing, it is undeniable that such penalties serve to increase the length of time that offenders
serve in prison by restricting the discretion of judges and corrections /parole officials. Dy doing so, these policies may have a eri
monogenie effect. A 2002 review conducted by leading Canadian criminologists involved a m etaanalysis of 117 studies measuring
yarious aspects of recidivism. The researchers concluded that longer periods in prison were "associated with a
small increase in recidivism" and that "the results appear to give soni e credence to the prison as
'schools of crime' perspective."4∂ Federal mandatory penalties increase the cahallenges for
successful reentry. While not a problem exclusive to mandatory sentencing, the combination of expanded federal prosecution of
drug offenses along with lengthier prison terms produced by mandatory penalties exacerbates the challenges of reentry. This is due to
the fact that since federal prisoners can be housed anywhere in the country, many are in prisons far from their homes
and are also serving long prison terms. This combination of circumstances contributes to eroding
ties to family and community, thecritical ingredients of successful reentry.
Mandatory minimums don’t solve crime
Bernick and Larkin 14 - Assistant Director of the Center for Judicial Engagement, Senior Legal Research Fellow at The
Heritage Foundation
Evan Berick and Paul Larkin, 2/10/2014, The Heritage Foundation, “Reconsidering Mandatory Minimum Sentences: The Arguments
for and Against Potential Reforms”, http://www.heritage.org/research/reports/2014/02/reconsidering-mandatory-minimum-sentencesthe-arguments-for-and-against-potential-reforms, 7/8/2015, \\BD
Furthermore, they contend, mandatory minimum sentences do not reduce crime. As University of Minnesota Law
Professor Michael Tonry has concluded, “the
weight of the evidence clearly shows that enactment of
mandatory penalties has either no demonstrable marginal deterrent effects or short-term
effects that rapidly waste away .”[31] Nor is it clear that mandatory minimum sentences reduce
crime through incapacitation. In many drug operations, if a low-level offender is incapacitated, another may quickly take
his place through what is known as the “replacement effect.”[32] In drug cases, mandatory minimum sentences are
also often insensitive to factors that could make incapacitation more effective, such as prior
criminal history.[33]∂ In theory, mandatory minimum sentences enable the government to “move
up the chain” of large drug operations by using the assistance of convicted lower-level offenders
against senior offenders. The government can reward an offender’s cooperation by moving in district court for a reduction of
the offender’s term of imprisonment below whatever term is required by law.[34] In reality, however, critics argue that the value
of that leverage is overstated. The rate of cooperation in cases involving mandatory minimums is
comparable to the average rate in all federal cases.[35]∂ Further, only certain defendants in cases
involving organized crime—those who are closest to the top of the pyramid—will be able to
render substantial assistance.[36] The result is that sentencing reductions go to serious offenders
rather than to small-scale underlings. The practice of affording sentence concessions to defendants who assist the
government is entrenched in American law, but the quantity-driven drug mandatory minimums are uniquely
problematic because they can render each low-level co-conspirator responsible for the same
quantity of drugs as the kingpin.[37]
Even if incarceration stopped crime in the past, it’s irrelevant now
Eckholm 1/13 – writer for the New York Times
Erik Eckholm, 1/13/2015, The New York Times, “In a Safer Age, U.S. Rethinks Its ‘Tough on Crime’ System”,
http://www.nytimes.com/2015/01/14/us/with-crime-down-us-faces-legacy-of-a-violent-age-.html, 7/8/2015, \\BD
But in the end, none of these factors fully explain a drop that occurred, in tandem, in much of the world. ∂ As the cost of incarceration
has multiplied, the state supplement for higher education has been proportionally reduced...We are literally starving the up-coming
generation of necessary education by paying for incarceration. ∂ “Canada, with practically none of the policy
changes we point to here, had a comparable decline in crime over the same period,” said Franklin E.
Zimring, a law professor and an expert in criminal justice at the University of California, Berkeley. He described the quest for an
explanation as “criminological astrology.”∂ The fall in serious crime was accompanied by declines in other
social ills such as teenage pregnancy, child abuse and juvenile delinquency, emphasizing the role
of cultural shifts beyond the ken of the justice system.∂ “Young people are growing up in a safer environment and
behaving more responsibly,” said Jeremy Travis, president of the John Jay College of Criminal Justice in New York and co-editor of a
2014 report by the National Academy of Sciences on the consequences of mass incarceration.∂ Along with uncertainty about the
sources of lower crime are contentious debates about what should come next. How far can incarceration be reduced without
endangering safety? Where is the proper line between aggressive, preventive policing and intrusive measures that alienate the lawabiding?∂ The rise in incarceration has been even more striking than the decline in crime, leading to growing agreement on both the
right and the left that it has gone too far. From the early 1970s to 2009, mainly because of changes in sentencing, the share of
American residents in state or federal prison multiplied fourfold, reaching 1.5 million on any given day, with hundreds of thousands
more held in local jails, although the rate has tapered off somewhat since 2009. ∂ The social and economic costs are now the subject of
intense study. Some conservatives such as William G. Otis, a former federal prosecutor and adjunct professor of law at Georgetown
University, argue that while many factors account for falling crime, harsher justice surely played a significant role.∂ “When people are
incarcerated they are not out on the street to ransack your home or sell drugs to your high school kid,” he said. ∂ But many
criminologists say the impact has been limited.∂ “The policy decisions to make long sentences
longer and to impose mandatory minimums have had minimal effect on crime,” said Mr. Travis, of John
Jay College. “The research on this is quite clear .” Higher imprisonment might explain from 10
percent to, at most, 25 percent of the crime drop since the early 1990s, said Richard Rosenfeld, a
criminologist at the University of Missouri-St. Louis. But it brought diminishing returns, he said, as those
committing less severe crimes also received lengthy sentences.
There is zero evidence mandatory minimums solve reoffending
Saris 13 - Chief United States District Judge for the United States District Court for the District of Massachusetts, J.D. from
Harvard, B.A. from Radcliffe College
Patti B. Saris, 7/18/2013, “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences”,
http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-andreports/submissions/20130918_SJC_Mandatory_Minimums.pdf, 7/6/2015, BD
D. Recent Reductions in the Sentences of Some Drug Offenders Have Not Increased∂
Offenders’
Propensity to Reoffend∂ The Commission recognizes that one of the most important goals of sentencing is∂ ensuring that
sentences reflect the need to protect public safety.28 The Commission believes∂ based on its research that some reduction in
the sentences imposed on drug offenders would not∂ lead to increased recidivism and crime.∂ In
2007, the Commission reduced by two levels the base offense level in the sentencing∂ guidelines for each quantity level of crack
cocaine and made the changes retroactive. The∂ average decrease in sentences among those crack cocaine offenders receiving
retroactive∂ application of the 2007 amendment was 26 months, which corresponds to a 17 percent reduction ∂ in the total sentence.29
In order to determine whether drug offenders serving reduced sentences posed any increased
public safety risk, the Commission undertook a study in 2011 of the∂ recidivism rates of the
offenders affected by this change. The Commission studied the∂ recidivism rate of offenders whose sentences were
reduced pursuant to retroactive application of∂ this guideline amendment and compared that rate with the recidivism rate of offenders
who∂ would have qualified for such a reduction, but were released after serving their full sentence ∂ before the 2007 changes went into
analysis showed no statistically significant ∂ difference between the two groups.31∂
Of the 848 offenders studied who were released in 2008 pursuant to the retroactive∂ application of
the 2007 sentencing amendment, 30.4 percent recidivated within two years. Of the∂ 484 offenders
studied who were released in the year before the new amendment went into effect∂ after serving
their full sentences, 32.6 percent recidivated within two years. The difference is not
effect.30 The
statistically significant .32
AT DA – crime – link turn
Mass incarceration actually increases crime in the long term
Lynch and Sabol, 02- (James P. Lynch is a professor and chair of the Department of Justice Law, and Society at American
University- William J Sabol is assistant director at the US general Accounting Office) Chapter 6: Effects on Informal Social Control
In Communities From “Imprisoning America: The Social Effects of Mass Incarceration” p. 137, Russle Sage Foundation, NY 2002,
print//droneofark
More recently, Dina Rose and Todd Clear (1998a) theorize that incarceration may have unintended
negative consequences for the organization of communities; they Introduce the concept of
coercive mobility (that is, mobility induced by removal and to return from prison) and posit that it can
undermine the less coercive institutions of social control- such as families, community
associations, and a community's capacity in enforce norms—that are the first line of defense
against crime. Severe disruption of these institutions, Rose and Clear argue, can mean that the long term
consequence of the massive increases in incarceration will be increases, and not continued decreases, in
crime.
Link turn—decarceration deters crime—and no link to their disads—if the
neg is right about the harms of our prison model, then decarceration means
we will be able to reform it
McLeod, 12—Associate Professor, Georgetown University Law Center. J.D., Yale Law School, 2006; Ph.D., Stanford
University, 2009 (Allegra M., “Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law,” Georgetown Law Journal,
Lexis)//emchen
A decarceration model need not fundamentally undermine an agency-focused intentionalist perspective of the sort, Boldt addresses,
but merely reorganizes society's response to particular defendants and offenses, preferring mandatory social institutional integration to
jail or prison sentencing. Criminal prohibitions remain intact until they are legislatively altered, so the expressive moral condemnation
function of criminal law remains, in that regard, unchanged. The sentence assigned in response merely shifts from prison, jail, and
conventional criminal supervision to other sectors. This shift occurs on a decarceration model in part in the interests of a larger
concern for justice--for maintaining the legitimacy of a legal order that is deeply compromised by overcriminalization and
overincarceration. Even on a Kantian retributive theory, it may be that some measure of lenience is warranted [*1663] to "preserve the
legal order on which justice depends." n302 Though much more could surely be said, for now that concludes the retributive defense of
a decarceration model. From the perspective of deterrence, a decarceration approach dissuades for the
same reasons that it may be experienced as punishment from a retributive standpoint: diversionary sentences still
substantially constrain defendants' liberty. A potential offender aware that apprehension may lead to a court-ordered diversion
program, will be inclined to desist from being apprehended for conduct that will lead to a diversionary sentence, something that
individual would prefer to avoid. Critically, on a decarceration model, referral services are open to all comers,
not just those referred through diversionary courts, so there is no incentive to offend in order to
obtain services should those services be desired. Further, for most eligible defendants--mentally ill
persons, drug addicts, veterans suffering severe post-traumatic stress--their socially disruptive conduct is unlikely to
be carried out following reflective cost-benefit analysis, so the deterrent potential of any
criminal law administrative arrangement is questionable . n303 It must, of course, be acknowledged that a
diversionary sentence will not deter those individuals who wish both to commit an offense subject to the jurisdiction of a specialized
criminal court and who wish to enter diversionary programming. But as noted above in reference to retributive concerns, this same
problem arises with respect to conventional jail, prison, and probationary sentencing: for many criminal defendants, criminal law
involvement has become an anticipated part of the life course, a life stage through which certain demographics of defendants expect to
pass, and, in this regard, a diversionary approach may not be appreciably less stigmatizing (and less deterrent) than conventional
sentencing. One reason a decarceration model is preferable to a more jurisprudentially specified model of specialized criminal law
administration, such as therapeutic jurisprudence, is because this jurisprudentially underspecified form permits the courts to engage
multiple complex meaning imparting functions involved in criminal law administration. In certain criminal cases, the ideal role of the
court may be simultaneously to condemn a given offense and the possibly reprehensible motivations behind it, to reaffirm the worth of
the victim, to aim to craft a sanction that will deter the offender and others from such conduct in the future, but also to act mercifully.
This is a complex undertaking, to be sure, and one that cannot be easily captured under a single criminal law jurisprudential theory,
whether a therapeutic jurisprudential approach or an instrumentally deterrent [*1664] model. As Dan M. Kahan and Martha C.
Nussbaum have proposed: "A disposition that purports to answer only a single, abstract question--did the defendant's background
'cause' his crime? or even does the defendant 'deserve' to be punished?--will never be rich enough to convey all of these meanings."
n304 In this respect, courts adopting a decarceration approach have overdetermined meanings, rendering them potentially consistent
with a range of differing ideological and legal precommitments. Retributivists may favor diversionary courts because they enable a
tough and intrusive form of criminal law administration that is proportional to wrongdoing and lenient where in the interests of justice,
having the potential to both deter and prevent future offending, and others may be drawn to diversionary courts for their rehabilitative
and humanitarian potential. Regardless of one's criminal law theoretical commitments, a decarceration model promises to reduce
criminal law administrative costs, increase efficacy, and reduce reliance on incarceration. For the time being, a decarceration
approach is best suited to misconduct for which there is some considerable collective interest-among legal actors and the public--in experimental alternative social response . But perhaps over time a
growing class of offenses and offenders will come to seem suitable candidates for decarceration. There are surely some
crimes of violence that will not be amenable to decarceration processing at all, though it is not entirely
clear what those offenses are in the abstract. The conduct of the person who murders, who rapes, who robs by violent means may not
be subject to redirection through court or other intervention, and the only politically and socially viable response may be moral
condemnation and incapacitation. As sociologist Jack Katz explains in his studies in Seductions of Crime, certain violent acts may
"emerge from a dizziness in which conformity is the greatest spiritual challenge and deviance promises the peace of transcendent
significance." n305 But for others who have killed, their deviant conduct may never again be repeated--it may have occurred in a
drug-induced haze that, following recovery, would no longer threaten others and for which moral culpability is lacking. The
experimental, unfinished character of a decarceration model allows this question be resolved
incrementall y over time. CONCLUSION In this moment of increased openness to thoroughgoing criminal law reform,
after decades of escalating criminal sentences, thousands of specialized criminal courts have emerged across the country and around
the globe. These courts have become the location of a contest between competing criminal law models. Certain models at work in
specialized criminal courts are configured in such a way that threatens to produce a series of unintended and undesirable
consequences--increased and unnecessary criminal supervision, diminished procedural [*1674] safeguards, and potentially even
increased incarceration. But a less predominant criminal law reformist model--a decarceration model--may provide a
way of developing different approaches to certain of the social problems currently managed
through criminal law. The greatest promise of a decarceration model--if it succeeds at engendering a certain
degree of cognitive reframing, institutional reinvention, and systemic change--is to remove particular categories of
offenses and offenders from conventional criminal courts to be addressed both more effectively
and more humanely elsewhere. Primary candidates for such removal through existing specialized
criminal courts include drug offenders, mentally ill persons, and individuals suffering the posttraumatic stress of war. Removal of these matters to other sectors would reduce volume pressures on
conventional criminal courts so that they might more meaningfully and fairly address the relatively few cases of serious
violent and property crime, for which alternative processes seem inappropriate or would be exceedingly unpopular. These
more serious criminal matters may not be handled best in the standard criminal process either, but we have yet to identify a better
approach. In due course, if specialized criminal courts set in motion some measure of systemic change in criminal law administration,
they may both focus and improve responses in cases of serious crime and simultaneously improve community economic development,
accessible public health services, employment, and more generally, human well-being. It is also possible that specialized criminal
courts will achieve none of these things--that their perils rather than their possibilities will be their legacy--but, given the grave
inadequacies and injustices of the status quo in U.S. criminal law administration, these courts are well worth trying.
AT DA – crime – deterrence fails
Spending on prisons/deterrence kills effective prevention measures
Ghandnoosh, PhD, ’15 [Nazgol, research analyst at The Sentencing Project who conducts and synthesizes research on
criminal justice policies, February 2015, ‘Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System.’ Pg. 18
Accessed 6 July 2015. http://www.sentencingproject.org/detail/publication.cfm?publication_id=577&id=120/VL
Excessive spending on criminal justice programs limits public funds that can be allocated to
crime prevention and drug treatment. Because of their higher rates of incarceration, victimization,
and poverty, people of color are disproportionately affected by these shortcomings in policy.
AT DA – crime – impact d
Limiting crime doesn’t create a more egalitarian society
Lynch and Sabol, 02- (James P. Lynch is a professor and chair of the Department of Justice Law, and Society at American
University- William J Sabol is assistant director at the US general Accounting Office) Chapter 6: Effects on Informal Social Control
In Communities From “Imprisoning America: The Social Effects of Mass Incarceration” p. 154-155, Russle Sage Foundation, NY
2002, print//droneofark
While these analyses suggest that incarceration may have a negative effect on crime at the neighborhood level, crime reduction
does not seem to contribute to community organization or collective efficacy in the expected
manner. Changes in the neighborhood crime rate are not significantly related to levels of
membership in voluntary associations or, as noted earlier, to the exercise of informal social control;
however, changes in crime rates are positively related to neighboring and community solidarity (table
6.4). The positive association between changes in crime rates 155 and solidarity may occur because
community residents mobilize rather iii.in withdraw In the face of rising crime rates. This Interpretation
takes on added plausibility when we consider that the sample of thirty communities did not represent the extremes oi social
disorganization in Baltimore's 277 neighborhoods! Some of the worst areas with the highest levels of disorganization were omitted,
leaving a larger proportion of neighborhoods with sufficient resources to mobilize in the face of crime. The structural-equation models
(in table 6.4) also indicate that increases in incarceration can have negative effects on aspects of community organization that, in turn,
affect levels of informal social control. Specifically, increases in incarceration rates have a negative and significant effect on
community solidarity, and solidarity has a strong positive effect on informal social control. The product of these two
relationships is a negative effect of increases in incarceration on informal social control. In sum,
the structural-equation models that take account of simultaneity bias in the relationship between
incarceration and crime find that there is likely a negative effect of incarceration on crime at the
neighborhood level; 2, reductions in crime at the neighborhood level do not enhance community organization and informal
social control; V increases in incarceration are associated negatively with some of the community processes on which informal social
control depends. However, the results from the structural-equation models in table 6.4 do not lake account of the nested nature of the
data. When persons are nested within communities there is a lack of independence between observations that can lead to inefficient
tests of significance and biased coefficients, fn the following sections we employ hierarchical linear models to test the models from
the previous section that include both individual- and neighborhood-level variables. The hierarchical linear model lakes account of the
fact that these data are nested.
AT DA – politics
The plan is popular and bipartisan with all branches of the government
Luna and Cassell 11 - Professor of Law∂ and Law Alumni∂ Faculty Fellow,∂ Washington and∂ Lee University∂ School of
Law, Ronald N. Boyce∂ Presidential∂ Professor of∂ Criminal Law,∂ University of Utah∂ S.J. Quinney∂ College of Law
Erik Luna and Paul G. Cassell, February 2011, University of California Press, Vera Institute of Justice, “Sense and Sensibility in
Mandatory Minimum Sentencing”,
http://www.jstor.org.proxy.lib.umich.edu/stable/pdf/10.1525/fsr.2011.23.3.219.pdf?acceptTC=true&jpdConfirm=true, 7/6/2015, BD
Considering the problems associated with mandatory∂ minimums, it is perhaps unsurprising that numerous∂ federal
judges (including members of the U.S. Supreme∂ Court) have voiced dismay at the excessive sentences they∂
were required to pronounce and affirm. But mandatory∂ minimums have also come under fire
from the political∂ branches. At various times in their careers, the last four∂ Presidents have doubted the wisdom of long
mandatory∂ sentences. Likewise, some federal lawmakers and former∂ law enforcers have spoken out
against mandatory∂ minimums, joined by a chorus of commentators and∂ organizations of all
political stripes.
The plan is bipartisan—empirics prove
Cohen, 13—a contributing editor at The Atlantic (Andrew, 12/14/13, "Government Watchdog: We Have a Growing Federal
Prison 'Crisis"', The Atlantic, www.theatlantic.com/national/archive/2013/12/government-watchdog-we-have-a-growing-federalprison-crisis/282341/)//emchen
Finally, the OIG criticized the pace of one of the other "reforms" that Attorney General Holder touted so
loudly this summer. The "compassionate
release" program, in which inmates who clearly don't pose a
security threat are permitted to leave prison, should be a no-brainer . And it has bipartisan
support . And yet the OIG reveals that the Justice Department has failed or refused for a number of years to
adequately implement the program, revising its policies on the same day that the OIG issued a report critical of those
very policies. From the report: The BOP’s compassionate release program, which allows the Department to release
inmates under extraordinary and compelling conditions, also could provide some budgetary relief for the BOP.
However, an OIG review earlier this year found that the program was badly mismanaged and that better
administration of the program would inevitably result in cost savings to the BOP and help the
BOP address its capacity problems.
The plan is bipartisan- leads to further reforms
Luna and Cassell 11 - Professor of Law∂ and Law Alumni∂ Faculty Fellow,∂ Washington and∂ Lee University∂ School of
Law, Ronald N. Boyce∂ Presidential∂ Professor of∂ Criminal Law,∂ University of Utah∂ S.J. Quinney∂ College of Law
Erik Luna and Paul G. Cassell, February 2011, University of California Press, Vera Institute of Justice, “Sense and Sensibility in
Mandatory Minimum Sentencing”,
http://www.jstor.org.proxy.lib.umich.edu/stable/pdf/10.1525/fsr.2011.23.3.219.pdf?acceptTC=true&jpdConfirm=true, 7/6/2015, BD
Both authors of this article believe that it would make a∂ lot of sense for Congress to reform the federal
mandatory∂ minimum scheme. But we also recognize that any renovation∂ in this area raises political sensibilities that are
not∂ easily assuaged. As a practical matter, any meaningful∂ reform may have to be done in a careful, focused
way to∂ create a broad, bipartisan consensus surrounding the∂ changes. With this in mind, we have
considered how to∂ alter the federal scheme to ameliorate its most draconian∂ and unfair expressions. The two of us espouse very
different∂ legal and political theories, and we often disagree on∂ criminal justice issues. If we could find common ground∂
on ways to modify federal mandatory minimums, we∂ hoped that policymakers might share this
agreement, perhaps∂ sowing the seeds of further reforms.
The plan is popular and bipartisan
Bernick and Larkin 14 - Assistant Director of the Center for Judicial Engagement, Senior Legal Research Fellow at The
Heritage Foundation
Evan Berick and Paul Larkin, 2/10/2014, The Heritage Foundation, “Reconsidering Mandatory Minimum Sentences: The Arguments
for and Against Potential Reforms”, http://www.heritage.org/research/reports/2014/02/reconsidering-mandatory-minimum-sentencesthe-arguments-for-and-against-potential-reforms, 7/8/2015, \\BD
Today, public officials on both sides of the aisle support amending the federal mandatory
minimum sentencing laws. Two bills with bipartisan support are currently under consideration.
Senators Patrick Leahy (D–VT) and Rand Paul (R–KY) have introduced the Justice Safety Valve
Act of 2013,[2] which would apply to all federal mandatory minimums. Senators Dick Durbin
(D–IL) and Mike Lee (R–UT) have introduced the Smarter Sentencing Act, which would apply to
federal mandatory minimums for only drug offenses.[3]∂ In what follows, this paper will explain how mandatory
minimums emerged in the modern era, summarize the policy arguments for and against mandatory minimums, and evaluate both the
Justice Safety Valve Act and the Smarter Sentencing Act. The bottom line is this: Each proposal might be a valuable step forward in
criminal justice policy, but it is difficult to predict the precise impact that each one would have. This much, however, appears likely:
The Smarter Sentencing Act is narrowly tailored to address one of the most pressing problems with mandatory minimums: severe
sentences for relatively minor drug possession crimes.[4]
The plan is bipartisan - leads to spillover
Mauer 10 - Helen L. Buttenweiser Award from the Fortune Society (1991), the Donald Cressey Award from the National
Council on Crime and Delinquency for contributions to criminal justice research (1996), the Alfred R. Lindesmith Award from the
Drug Policy Alliance for achievement in drug policy scholarship (2003), the Maud Booth Correctional Services Award from
Volunteers of America (2008), the John Augustus Award from the National Association of Sentencing Advocates (2009), the
Margaret Mead Award from the International Community Corrections Association (2009), and the Inside/Out Summit Award from
Centerforce (2011). B.A. at Stony Brook University, Masters of Social Work at University of Michigan
Marc Mauer, July/August 2010, “The impact of mandatory minimum penalties in federal sentencing”,
http://search.proquest.com.proxy.lib.umich.edu/docview/749942323?pq-origsite=summon&accountid=14667, 7/6/2015, BD
The growing bipartisan consensus on the need for reform of policies such as die cocaine
sentencing disparity is an encouraging recognition that there is now a receptivity toward
examining the effectiveness of sentencing policies adopted in recent decades. In regard to mandatory
sentencing, there is a broad consensus among legal organizations, scholars, and many practitioners
that such policies are counterproductive to a fair and effenive system of justice. Thus, the congressional
mandate to assess these policies and the Commission's thorough examination of the relevant issues is ven welcome. Eliminating
mandatory sentencing from the lederai court system would represent a significant step toward
developing a more rational and fair system ofsentencing.
Abolition strategies link way more to politics
Luna and Cassell 11 - Professor of Law∂ and Law Alumni∂ Faculty Fellow,∂ Washington and∂ Lee University∂ School of
Law, Ronald N. Boyce∂ Presidential∂ Professor of∂ Criminal Law,∂ University of Utah∂ S.J. Quinney∂ College of Law
Erik Luna and Paul G. Cassell, February 2011, University of California Press, Vera Institute of Justice, “Sense and Sensibility in
Mandatory Minimum Sentencing”,
http://www.jstor.org.proxy.lib.umich.edu/stable/pdf/10.1525/fsr.2011.23.3.219.pdf?acceptTC=true&jpdConfirm=true, 7/6/2015, BD
Although an across-the-board repeal may be a nonstarter∂ today, this historical example suggests that it is not∂ impossible to
reform mandatory minimums. As we discuss∂ at greater length elsewhere, the most viable approach∂ would
involve a modest proposal that comports with common∂ principles and values.13 Supporters may
have to∂ contend with the conventional wisdom about the propunishment∂ politics of criminal
justice. But the task might∂ be far less difficult than expected, as growing opposition to∂ mandatory
minimums could indicate that the norm of∂ inflexibly harsh punishment maintains only a tenuous∂
hold over the lawmaking process. If so, a small reform ∂ backed by influential political actors
might trigger a cascade∂ of support in Congress.
Plan is popular and bipartisan
Jones 7/7, (Solomon, BA in journalism, Temple university, “Solving the Problem of Prison Overcrowding”,
http://www.philly.com/philly/living/20150707_Solving_the_problem_of_prison_overcrowding.html)
President Obama has gone beyond the overhaul of sentencing guidelines that
characterized his first
term. He is now preparing to issue clemency orders to release dozens of federal prisoners jailed
for nonviolent drug offenses.∂ Lest you believe that this is some liberal effort, the Koch Brothers,
businessmen who've put millions behind conservative Republican candidates, also have jumped
in, along with the Center for American Progress, a liberal advocacy organization with ties to the White House and
Bill and Hillary Clinton.∂ Those
disparate groups are working together to reduce prison populations for
different reasons. Liberals believe it's wrong to imprison people for seemingly minor offenses,
and they are concerned about data that show racial disparities in sentencing. Conservatives are
concerned with the bottom line. Prisons cost taxpayers too much, and there is no real return on
the investment.
AT DA – politics – plan popular
The public loves the plan- moving to enact statutory reforms
Luna and Cassell 11 - Professor of Law∂ and Law Alumni∂ Faculty Fellow,∂ Washington and∂ Lee University∂ School of
Law, Ronald N. Boyce∂ Presidential∂ Professor of∂ Criminal Law,∂ University of Utah∂ S.J. Quinney∂ College of Law
Erik Luna and Paul G. Cassell, February 2011, University of California Press, Vera Institute of Justice, “Sense and Sensibility in
Mandatory Minimum Sentencing”,
http://www.jstor.org.proxy.lib.umich.edu/stable/pdf/10.1525/fsr.2011.23.3.219.pdf?acceptTC=true&jpdConfirm=true, 7/6/2015, BD
What is more, opinion polls suggest that opposition is∂ growing among the general public.6 It now appears
that∂ significant
interest exists in moving beyond a verbal critique∂ to enacting statutory reforms, as
evidenced by,∂ among other things, a congressional directive to the U.S.∂ Sentencing Commission to
study mandatory minimums.7∂ Most recently, the Fair Sentencing Act of 2010 eliminated∂ the
five-year mandatory sentence for simple crack cocaine∂ possession, representing the first repeal of
a statutory∂ minimum since the Nixon administration.8