BOOK REVIEW CONTENTS INTRODUCTION 448 I. MASS INCARCERATION: SYMPTOMS, DIAGNOSIS, AND POSSIBLE CURES 451 A. Symptoms 451 B. Diagnosis 453 C. Proposed Reforms 456 II. CHANGES IN THE NATIONAL PARTIES 460 III. RECENT ELECTORAL DEVELOPMENTS AND THE SUCCESS OF PROREFORM 466 INTEREST GROUPS IV. PUBLIC OPINION AND THE CHANGING ELECTORATE 472 CONCLUSION 480 APPENDIX 481 INTRODUCTION
In Prisoners of Politics, Rachel Barkow puts electoral politics front and center in debates over criminal-justice reform. Prisoners of Politics is the most recent contribution to an important scholarly conversation about how mass incarceration came to be and how it might be undone. (1) The book's focus on electoral politics distinguishes it from other recent contributions. Elected officials, Prisoners of Politics argues, will be structurally biased toward punitive criminal-justice policies because "tough-on-crime" rhetoric is simpler than "smart-on-crime" rhetoric, and it appeals to a public inclined toward fear due to racist attitudes and the media's focus on violent crime. (2) A main impediment to criminal-justice reform, then, is the class of elected officials--legislators, prosecutors, and judges--who see punitiveness as their only path to electoral success. If mass incarceration is caused by too much direct electoral input, the argument goes, perhaps it can be undone by placing criminal-justice policy outside the domain of electoral politics. The road to a less punitive system, the book contends, lies in expert criminal-justice policymakers who are insulated from electoral politics and can oversee and check the work of prosecutors.
This is a powerful story. It resonates with the demagoguery that has long characterized public debate about criminal justice, from President Nixon's "law-and-order" campaign to President George H.W. Bush's Willie Horton ad to President Trump's fearmongering about urban crime. Given the success of these strategies, how can the American voter be trusted to end mass incarceration?
Tempting as it may be to treat electoral politics as antithetical to decarceration, this Review argues that there is nothing inherent about electoral participation's punitive influence on criminal-justice policy. Drawing on political-science research, including original public-opinion analysis, I argue that more electoral politics--not less--may lead the United States toward criminal-justice reform and an end to mass incarceration. I argue that the apparent tension between electoral politics and an end to mass incarceration is highly contingent--and unlikely to last forever. Three political trends signal possible changes in the years ahead. First, the national politics of criminal justice have changed since the late twentieth century: nearly all national Democrats now support criminal-justice reforms, as do significant parts of the Republican coalition. Second, grassroots movements and activism have already been successful in electing reform-minded officials and in spurring reform at the local, county, and state levels. Third, the electorate will likely become less punitive in the years ahead: today's young Americans have come of age under very different conditions than did their older counterparts, and as younger Americans age into greater political participation, we can expect the electorate as a whole to become less punitive. So long as we do not see a return to the crime spike of the late twentieth century, these three trends likely portend a less punitive future.
If these trends hold, it is possible to envision widespread public support for an end to mass incarceration. Indeed, the peak of mass incarceration is likely already behind us. The nationwide incarceration rate is falling. (3) Forty-two states have successfully reduced their incarceration rates relative to high-water marks in the late 1990s or 2000s. (4) Seven of those states have reduced their incarceration populations by more than twenty percent, and an additional fifteen have done so by more than ten percent. (5) Recent years have witnessed more than a dozen states closing prisons or considering doing so, after decades of expansion. (6) A recent book by criminologists Todd Clear and Natasha Frost seeks to document and explain "the end of the great penal experiment that took place between 1970 and 2010." (7) "The decline in the overall correctional population is but the current realization of a longer trend," they note, showing how "the steam behind [mass incarceration] has been declining for some time." (8)
Greater electoral participation might even hasten the end of mass incarceration. General efforts to expand the voting base might be particularly effective in enfranchising voters who are younger or nonwhite, the very voters likely to support an end to mass incarceration. Reformers have several tools at their disposal: lifting formal restrictions on voting, (9) narrowing turnout gaps, (10) and eliminating off-cycle elections for prosecutors" would all likely result in an electorate friendlier to reform. Thus, these tools--some of which have long been part of a general prodemocracy agenda--would assist in ending mass incarceration. Even without these changes, however, recent years have shown the beginnings of a trend away from punitiveness and toward reform.
A disclaimer is in order before proceeding. This Review is not an intervention in a recent debate over what has been called "democratic criminal-justice reform." Proponents of that movement have called for "mak[ing] criminal justice more community focused and responsive to lay influences" (12) and have proposed reforms such as an expanded use of citizen juries in service of making the system less punitive. (13) Critics have responded that greater public participation of this character is unlikely to result in progressive outcomes. (14) The debate between the pro- and antidemocratizers concerns which form of decision-making--highly local citizen participation or technocracy--is structurally more likely to produce a less punitive criminal-justice system. This Review takes no stance on that debate. (15)
This Review instead focuses on aspects of democracy largely absent from the current debate: elections, parties, and interest groups. It is concerned with how those forces shape the selection of criminal-justice policymakers, including legislators, prosecutors, and judges. It does not focus on the promise or peril of greater local public participation in criminal-justice decision-making, but rather analyzes the electoral forces that determine who becomes a criminal-justice policymaker. It argues that the current national political and public-opinion climate is congenial to a rise in anti-incarceration reforms emerging from electoral politics.
The Review proceeds in four Parts. Part I summarizes Prisoners of Politics, including the book's assessment of the causes and consequences of mass incarceration and the book's proposals for reform. The remainder of the Review discusses each of the three reasons why electoral politics are less hostile to decarceration than the book suggests. Part II discusses changes in both the Democratic and Republican parties at the national and state levels; Part III reviews recent electoral outcomes at the state, county, and local levels; and Part IV analyzes public-opinion data suggesting the emergence of a less punitive electorate in the future. A brief conclusion follows.
MASS INCARCERATION: SYMPTOMS, DIAGNOSIS, AND POSSIBLE CURES
Prisoners of Politics is organized in three parts: it begins by setting out the symptoms of mass incarceration, it then diagnoses those symptoms, and it proceeds to propose several possible cures.
The first and longest part of the book masterfully pulls together several decades of research from criminology, sociology, economics, and law on the causes and consequences of mass incarceration. Anyone not already persuaded that the U.S. criminal-justice system is deeply broken--in that it does not effectively serve the goals of rehabilitation or public safety--is likely to be convinced by the book's deft combination of quantitative, qualitative, and narrative evidence. The book's bill of particulars includes a chapter accomplishing each of the following:
* Showing how individuals can end up convicted of crimes that have sentences and collateral consequences out of proportion to the seriousness of their underlying behavior. In many states, labels like "sex offender" and "drug trafficker" are extraordinarily broad, at times including flashers, streakers, and teenagers having consensual sex with their partners (in the former case) and low-level drug dealers or even users (in the latter case). (16)
* Illustrating state legislatures' passage of punitive sentencing laws and mandatory minimums; (17) summarizing the extensive research showing that longer sentences do not deter crime; and explaining the severe negative externalities to lengthy incarceration, including for the families of those incarcerated. (18)
* Chronicling the shocking lack of rehabilitative services in prisons and jails, and presenting evidence showing that conditions of confinement and the removal of individuals from family and community influences can make them more likely to commit future crimes upon release. (19)
* Showing that there are no meaningful mechanisms for reviewing and changing criminal-justice policies that have already been implemented--either for individuals who might be ready to leave prison before the maximum term of their sentence is finished, or for charging, sentencing, and parole policies that seem to threaten rather than improve public safety. (20)
* Documenting the severe collateral consequences of conviction--particularly felony conviction--for the future housing and employment prospects of individuals with a criminal record. (21)
A notable strength of these chapters is that they tackle the normative failings of the current system along with the...