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The Era of Punitive Excess

The criminal justice system is marred by an overreliance on excessive punishment.

  • Jeremy Travis
  • Bruce Western
April 13, 2021
View the entire Punitive Excess series

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.