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A Path Forward from 50 Years of Mass Incarceration in the United States

The year 2023 marks 50 years of mass incarceration in the United States. This timely volume highlights and addresses pressing social problems associated with the U.S.’s heavy reliance on mass imprisonment. In an atmosphere of charged political debate, including “tough on crime” rhetoric, the editors bring together scholars and experts in the criminal justice field to provide the most up-to-date science on mass incarceration and its ramifications on justice-impacted people and our communities.

This book offers practical solutions for advocates, policy and lawmakers, and the wider public for addressing mass incarceration and its effects to create a more just, fair and safer society.

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In 48 US states, felony disenfranchisement, or the denial of voting rights to people with criminal records, creates or exacerbates multiple problems. It limits democratic participation, increases racial inequality, conflicts with public opinion, compromises reintegrative efforts and public safety, creates needless confusion about eligibility, and is far out of step with international practices. Moreover, the threat of prosecution for unlawful voting—which can result in a new felony conviction—further reduces democratic participation even among eligible voters. Over 4.6 million US adults are disenfranchised, or deprived of the right to vote based on a past felony conviction. State laws vary greatly across the country, with some states not imposing disenfranchisement on any group (Maine and Vermont), some restricting voting rights for people in prison (for example, Illinois), others restricting rights for people serving probation or parole sentences in the community (for example, Wisconsin), and some disenfranchising even after the entire sentence is served (for example, Alabama). Overall, about 48 percent of the disenfranchised had already completed their full sentences, another 28 percent are serving sentences in the community on probation (21 percent) or parole (7 percent), and the remaining 24 percent are currently incarcerated.

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Beginning in the 1970s, the United States embarked on a four-decade-long policy of locking up more and more people yearly. Before starting, the nation’s incarceration rate had remained flat since 1925. Scholars discussed the “stability of punishment and the prospects for decarceration.” Suddenly, these conversations seemed quaint. Writing in 1985, Elliott Currie was shocked that the state and federal prison population had doubled to 450,000. A decade later, Todd Clear documented that this figure had almost doubled again, reaching 850,000 inmates. He called this surge “astounding,” but it proved like a number on an automobile odometer, quickly surpassed. It took until 2009 for the state and federal prison population to peak at 1.54 million. When all forms of incarceration were included (for example, jail residents), the count reached 2.29 million. The nation’s incarcerated population has since trended downward. The decline in 2010 was tiny—0.4 percent for state and federal prisoners and 1.1 percent for those incarcerated—but it was a harbinger of things to come. The era of mass incarceration, however, involved more than numbers; it involved a change in focus from the rehabilitative to the punitive ideal.

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Housing instability and incarceration have complex and consequential interrelationships. People within jails and prisons are disproportionately affected by homelessness. Likewise, people experiencing housing instability have high rates of involvement with the criminal legal system (CLS). Both populations have dramatically increased in the United States since the 1970s. Reforms related to housing and the CLS are increasingly centered in public discourse and policy discussions, with the two issues increasingly overlapping. In this chapter, we argue that collaborations between researchers and practitioners are crucial for increasing housing stability and decreasing interactions with the CLS. Strategies to address structural barriers can be furthered by communicating with policy makers and leveraging existing funding opportunities and initiatives. We begin by highlighting relevant research and data and then provide key recommendations. Our understanding of the relationship between housing and CLS involvement comes from research within correctional facilities and shelters, national and large multi-site studies, and qualitative studies on stigma, discrimination, and challenges with exiting homelessness. Such studies show the overlapping prevalence of housing instability and CLS involvement and the influence of criminalization, policies, and social norms.

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The impact of mass incarceration extends beyond incarcerated individuals to their families. When parents become incarcerated, the process likely disrupts their children’s lives in many ways. Children may experience changes in living arrangements and caregivers, precarious financial situations due to the loss of parental income, and feelings of loss. Although not traditionally considered victims, children of incarcerated parents are the hidden victims of mass incarceration. In the National Institute of Justice Journal, Eric Martin describes this population as the hidden victims of the criminal justice system because few stakeholders recognize the effects of parental incarceration on their children. However, the children’s experiences can mirror that of crime victims, as separation from parents tends to harm children of incarcerated parents. Considering the social problems associated with mass incarceration, we must consider how it can disrupt family functioning and negatively impact child wellbeing. Mass incarceration has significantly increased the number of children experiencing parental incarceration. Murphey and Cooper estimate that approximately 7 percent of children have experienced the incarceration of a residential parent in jail or prison. Sykes and Pettit write that in 1980 around 500,000 children had a parent incarcerated in jail or prison; by 2012, this number increased to 2.6 million.

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The problem of mass incarceration has turned into a massive parole and reentry problem. As an example, in California, there were legal pressures to reduce the prison population in the wake of the United States Supreme Court case Brown v Plata (2011), which found that the California prison system was violating human rights and creating unsafe conditions by maintaining prisons overcrowded to nearly twice their capacity. This led to a decade of reform measures aimed at reducing the prison population, including allowing those who are incarcerated with a life term an opportunity to appear before the parole board earlier than they would have otherwise. This, combined with a large number of incarcerated individuals requiring a parole hearing who are coming to the end of their mandatory minimum sentences, has led to an unprecedented number of parole board hearings—over 7,600 last year in California alone. There are also efforts to systematize these hearings by institutionalizing certain standards for parole suitability.

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Issues of autonomy, ethics, and rights plague questions of prison labor. Prison labor, sometimes called penal labor, can be seen as coercive, and in effect incentivizing mass incarceration as a means of bolstering the economy while simultaneously disappearing so-called “undesirable” populations coded by state-led discourse as less than human. The state’s and industry’s status as the central beneficiaries of penal labor is motivated by capitalist principles of economic growth and it denies people who are incarcerated access to autonomy and human rights. The prison system in the United States emerged alongside the institution of slavery and the over-policing of Black bodies. The 13th Amendment, ratified in 1865, abolished slavery and involuntary servitude except as a punishment for those convicted of crime. This allowed land and business owners to lease incarcerated labor, which ultimately cost less than enslavement as lessees no longer had vested interest in the longevity of a laborer’s life. As a result, newly freed Black people were excessively policed and charged with crimes they did not commit, among other profound violences. Convict leasing was outlawed in all 50 states by 1933, but by 1934 the Federal Prison Industries was established by executive order. Mass incarceration has since become a material reality as the number of people incarcerated (nearly two million) and the nation’s number of correctional facilities (over 5,000) has grown rapidly since the 1980s.

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The year 2023 marks 50 years since the era of mass incar-ceration began and there are now more people serving life sentences alone than the entire prison population at its start. This chapter focuses on the proliferation of life imprison-ment as a major, unchecked tactic of mass incarceration and calls for a radical downgrade in the severity of Ameri-can punishment. There have been extensive social, moral, and fiscal costs associated with the large-scale, dec-ades-long investment in mass imprisonment. High levels of imprisonment destabilize entire communities, leading to the dissolution of informal networks that are known to serve as barriers to neighborhood crime. Trust in law enforcement deteriorates as community members experience elevated levels of victimization and the loss of community members, friends, and family members to incarceration. An esteemed group of criminologists writing for the National Academies of Science is only one of the many who have concluded that it is misguided changes in sentencing law and policy, rather than crime, that has accounted for most of the in-crease in correctional supervision.

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Monetary sanctions (legal financial obligations, or LFOs) are the fines, fees, surcharges, interest, and restitution im-posed by the legal system on people who are issued cita-tions or make contact with criminal courts. The use of monetary sanctions has escalated dramatically over the decades and remains the most common form of punish-ment across the United States. This increase has raised im-portant questions about the relationship between financial penalties and the system of mass incarceration. Mass in-carceration has put tremendous fiscal pressure on govern-ments as they deal with ballooning criminal legal expendi-tures. Many governments have turned to monetary sanc-tions to absorb some of this cost, particularly in smaller ju-risdictions. These efforts involve increasing fines and fees for lower-level offenses and the increased use of LFOs in conjunction with other punishments such as incarceration. Thus, in addition to mass incarceration, we are also experi-encing an era of mass criminal legal debt. As reformists continue to push for alternatives to incarceration, it is vital to understand how these alternatives impact the predomi-nantly poor communities of color, especially those overrepresented among the justice-involved population. Individuals are often mandated to pay fees for their proba-tion, electronic home monitoring, and various rehabilitative services and treatment programs. This practice tends to widen the scope of individuals saddled with legal debt or extra-legal expenses for court-ordered treatment. At the same time, it creates what Pattillo and Kirk call “layaway freedom,” in which freedom from the criminal legal system (CLS) becomes contingent on an individual’s ability to pay.

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When first passed in 1965, federal financial aid legislation made no distinction between low-income students attending higher education programs in the “free world” and those attending prison-based education programs (PEPs). In the late 20th century, politicians and media outlets alike promoted depictions of those convicted of crimes as villains undeserving of many social benefits, including federal financial aid. In 1994, under the Clinton Administration, this punitive turn in criminal justice resulted in a 30-year ban on Pell Grants for incarcerated students and in an even broader range of barriers to higher education for those with criminal records who live in the community. The national conversation about PEPs began to change in 2015, as research emerging from the Second Chance Pell Experimental Sites Initiative (which exempted incarcerated students in select college programs from the prohibition on receiving federal financial aid) demonstrated several positive social effects of PEPs. While some continue to argue against federal financial aid for incarcerated students—suggesting that such aid “rewards” people for criminal behavior—evidence showing that PEP participation reduces recidivism, improves employment outcomes, and reduces correctional spending, has contributed to growing bipartisan support for expanding federal financial aid to all eligible incarcerated people. Rather than focusing on whether college should be provided to incarcerated people, the focus of the current national conversation is on how best to increase access and effectiveness of PEPs.

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