This essay is the first in the Brennan Center’s series examining the punitive excess that has come to define America’s criminal legal system.
Despite a small decline in incarceration rates over the last decade, American criminal justice policy remains at its most punishing point in history. The extent of correctional supervision — including community supervision on probation and parole as well as institutional supervision in prison and jails — expanded steadily from the early 1970s for the next three decades. In 2018, the total correctional population numbered 6.4 million adults, 2.1 million of them incarcerated.
Focusing just on the incarcerated, the 40-year growth in imprisonment rates from the early 1970s has been linked to changes in sentencing policy, particularly the widespread adoption of mandatory minimum sentences, often for drug offenses. And then through the enactment of very long sentences, particularly for those convicted of violence and with long criminal histories.
A full accounting of the harsh realities of the modern system of criminal justice in America extends beyond the vast reach of correctional supervision. Today’s landscape of punishment also includes the extensive criminalization of social problems such as homelessness and mental illness, intrusive policing policies such as stop and frisk, the imposition of fines and fees that exacerbate poverty, the legislatively defined collateral sanctions that close off opportunities for a full life to millions with criminal records, and the new technologies that place the entire public under a form of state surveillance.
We call this new reality the “Era of Punitive Excess.” In its multiple manifestations, damaging impact, political durability, and unbridled reach into all aspects of American life, the modern expression of society’s need to marginalize the poor and people of color through criminalization and punishment has become a stubborn social fact.
The essays in this series — generously curated by Brennan Center for Justice — mark another step in an overdue reckoning with this history. Because the criminal justice system that has emerged over the past half century is so deeply intertwined with the legacy of white supremacy in America, this reckoning necessarily underscores the urgency of recognizing, and repairing, the damage borne by communities of color and marginalized populations. At the most fundamental level, we must ask unsettling questions about the impulse to criminalize and punish, especially as this impulse has been applied selectively throughout American history.
Punishment describes not just what criminal justice institutions do, but also signifies a relationship between the state and its citizens. We define criminal punishment as the infliction of human suffering under the color of law. Criminal punishment describes a coercive relationship between an authority and those subject to its jurisdiction. The unequal distribution of criminal justice supervision across the population is an essential fact about the punishment relationship.
Most of the attention of researchers and policymakers has focused on the disproportionate incarceration of African Americans and Latinos. Throughout the period of rising incarceration, the imprisonment rate for African Americans has been 6 to 8 times higher than the imprisonment rate for whites. Imprisonment rates for Latinos have been 1.5 to 2 times higher than for whites. But similar disparities can be found in every dimension of the punishment landscape, from arrest patterns to pretrial detention to the imposition of fines and fees.
The nature of the punitive relationship lies as much in the qualitative character of who is incarcerated or under justice supervision as in the quantitative extent of the impacted population. The punished are often poor, yes, but they are also vulnerable in a variety of other ways that, in the absence of other social supports, exposes them to contact with police, the courts, and prisons. This is punishment as social policy — a way of responding to the range of social problems (including crime) associated with America’s particularly severe variety of poverty. The burdens of punitive policy have fallen particularly heavily in low-income communities, especially low-income Black communities. Neighborhood segregation concentrates a wide variety of social problems — poverty, unemployment, public disinvestment, unaffordable housing, untreated health problems — that contribute to crime and attract the attention of authorities.
The great injustice of the punitive posture of contemporary criminal justice was to attribute a super-abundance of moral agency to those who, by virtue of economic, demographic, and social disadvantage, often had the fewest choices to make. In this social world, shot through with racism, severe poverty, and their accompanying constraints on action, the moral agency that punishment regulates is distributed unevenly across the population and is in shortest supply among the most disadvantaged. But harsh punishment was at best indifferent to racism and poverty. In this world of punitive excess, poverty, trauma, and ill health were seen as bad choices by bad people who were then punished by the police, courts, and prisons.
To be something other than cruel, the punitive impulse must be directed at those acting with full moral agency. But this full moral agency is not just a matter of philosophical opinion. If empirical analysis shows that where incarceration is pervasive (a 70 percent imprisonment risk for Black men who haven’t finished high school, for example), demography may have as large an impact on punishment as individual culpability. Similarly, if nearly all those serving time in state prison have histories of untreated mental illness, substance use disorders, physical disability, or trauma, punishment is less a response to antisocial choices than a way of using state violence to manage vulnerable people who often have few constructive alternatives.
If punishment is not justice in such a world, then what is? Here, the answer lies in balancing the jurisprudence of individual culpability with the promotion of human capabilities. If the problems of crime, disorderly behavior, and idleness are characteristic of the social conditions of poverty, then justice is found through the abatement of those social conditions rather than punishing those who live in them.
This suggests a fundamental change in the work of those who are publicly charged with responding to violence. First, they would guard against the harms they may inflict on the most disadvantaged. The possibility of undue punishment, and the necessity of safeguards, are pressing because crime and disorder are more prevalent in poor communities, not because of the moral deficiencies of community residents but because of the social conditions of severe poverty. Second, and more ambitiously, the agents of the response to harm might work actively for promoting opportunity, citizenship, and community involvement at the deepest margins of society while recognizing the importance of individual accountability.
In the essays that follow in this series we will hear from champions of justice who are, in different ways, recognizing and combatting the harsh realities of punitive excess. On one level, an all-out mobilization is required to roll back the harmful reach of the state in the operations of a justice system that causes so much injustice. We applaud the efforts of those who tackle these challenges. Yet a clear-eyed realization of how far the country has strayed from the path of true justice requires more than system reform. This history compels the conclusion that we face a democracy deficit. The laws that have brought about the era of punitive excess were all passed by our elected representatives. The prosecutors who enforced these laws and sought long prison terms were all elected, as were many of the sheriffs and judges. Police chiefs were appointed by mayors responsive to the public will. The build-up of police and prison budgets, the starving of public defenders, the continuing atrophy of community supports — all were the product of democratic processes. If our democracy brought us to this point, can we hope that our democracy can carry the banner of fundamental change?
If the past half-century demonstrated the electoral effectiveness of tough-on-crime rhetoric, then reversing the trends we have observed will require a new public discourse about how best to respond to harm. That, in turn, is a tall order as the people adversely affected by these stubborn trends are not politically powerful. Yet in recent years we have seen hopeful signs pointing toward a different future. Prosecutors are being elected on platforms promising deep reform. The uprising following the murder of George Floyd has galvanized a nation to implement policing reforms that had been thought impossible a few years ago. A new national administration is explicitly committed to reversing the most harmful policies of the past.
Beyond these hopes for the future, we must still wrestle with nagging questions brought forcefully to the fore in the era of punitive excess: What is the purpose of punishment? How does a democracy guard against the inappropriate exercise of that state power? How can a society respond to harm while minimizing the imposition of punishment? Even more, can our society respond to harm in ways that respect the human dignity of all involved, do not exacerbate conditions of poverty, provide communities with agency over communal life, and promote healing and racial justice? Answering these questions will allow our country to repudiate the punitive project and undertake an authentic search for justice.
Jeremy Travis is executive vice president of Criminal Justice at Arnold Ventures. Bruce Western is a professor of sociology at Columbia University and codirector of the Columbia Justice Lab. They are cofounders of the Square One Project at the Columbia Justice Lab.