Supervision is a Major Barrier to Reentry

I’m speaking today at the RAND Corporation on “Career Prospects for People with Criminal Records.” While I’m there, I’ll speak about our work at the Prisons and Justice Initiative (founded by Marc Howard) at Georgetown University, focusing on the education work: the Scholars Program, the Paralegal Program, and the Pivot Program.

In addition to discussing our programs and bragging about our graduates, I plan to make two points:

  1. Reentry is a difficult process. The formula we often use is “housing + employment = successful reentry.” For this reason, we generally find that the most successful pre-release strategies are mediation with family members (to guarantee housing upon release), and education (to guarantee employment.) BUT…
  2. Reentry is needlessly complicated by the court supervision processes of parole (and sometimes probation.)

When we say that the three year recidivism rate is 68% (which is what you’ll find when you look at Bureau of Justice Statistics) we’re saying that 68% of formerly incarcerated folks are rearrested for something–but not necessarily for a crime, and certainly not for a crime that has a victim. More often then not, recidivism is the result of technical parole violations. These are activities that are not themselves illegal, but violate the terms of a person’s parole and lead to a short (or sometimes long) stint of re-incarceration.

Parole can thus interfere with the building blocks of reentry: housing and employment. What I’ve observed is that the restrictions of parole around housing can leave DC residents housing-insecure or homeless–while the meddlesome nature of drug tests and CSO visits can lead many employed returning citizens to lose their jobs because they must continually leave work to race across the city for a timed urine sample, or stay home unexpectedly for a home inspection.

Parole officers are not always caring and concerned mentors, either. It’s rare–I’m sure!–but sometimes they can be rude and disrespectful, not only to the person on parole but to their employers and family members as well. All of this puts unneeded stress on frayed bonds that returning citizens need to take advantage of their second chance. It is something that potential employers have to factor in to their decision to hire returning citizens.

Some supervision agencies are working to provide alternative hours for employed returning citizens, and to punish disrespectful attitudes from officers. However, the ongoing stigma and skepticism directed at returning citizens means that enforcing these provisions remains difficult.

Ideally, we’d treat supervision in much the same way that we treat other factors that hamper full commitment to an employer: parents face similar pressures from school cancellations and illnesses, for instance, but to at least some extent we socially value these conflicts and thus work to manage the difficulties parents face–again, not adequately but to some extent. We can and should do the same for returning citizens who face difficulties from supervision and monitoring. But we do not accommodate them!

This failure to accommodate returning citizens is exacerbated when an individual applicant or employee has multiple intersecting strains: a family to care for, a parole officer to negotiate with, a chance of being re-incarcerated. Employers struggle to manage these risks, and so they resist hiring returning citizens–even when they are missing out on talented workers.

It may well be that court supervision serves important public safety goals. However, it is long past time for supervision itself to be assessed for its efficacy and evaluated according to its benefits and its economic (and human!) costs. We already know that supervision is creating serious obstacles to measuring the efficacy of every other reentry program, since it undermines the efficacy of measures of recidivism by aggregating technical parole violations with reoffenses. If the true measure of “corrections” is “desistance” then we will struggle to measure that against the backdrop of drug and alcohol screenings, GPS monitoring, and association violations.

It’s worth repeating this fact: the US incarcerates 2.3 million people, ten times the global average. What’s more, almost 70 million of our fellow citizens have a criminal record. It’s almost certainly not a good idea to discriminate against returning citizens, because it’s a signal that no other country provides, meaning most returning citizens would be employed if only they had had the good luck to be born outside of the US.

The New (Old) John Locke Manuscript on Catholics

Reasons for Tolerating Papists Equally with Others

I read about it in the Guardian yesterday, and my cousin at St. John’s found the digital copy right there on the internet in plain sight. Apparently no one had attempted to transcribe it yet? It’s a confusing document–looks like reading notes from some separate document, as there are page numbers which appear out of order in the manuscript.

Here is a rough first effort. Please share edits! The folks who discovered the original manuscript in Annapolis have published a transcription at the end of this article–I used it to correct my transcription, though the remaining errors are mine. (Especially impressed by them figuring out “lex talionis” which was really irking me.) Congrats to Walmsley and Waldmann for showing that archival work can be rewarding!

7 Persecution disobliges the best sort amongst the papist as well as amongst others.

12 If liberty of conscience makes all men faily more and more to abhor popery, papists may be tolerated as well as others.

13 If liberty of conscience breed men up in an irreconcilable dislike to all imposition in religion, Papists may be safely tolerated.

If liberty of conscience unite the Protestants against the Papists, Papists may be safely tolerated.

15 If toleration be the way to convert Papists as well as others, they may equally be tolerated.

16 If Papists can be supposed to be as good subjects as others they may be equally tolerated

17 If all subjects should be equally countenanced and employed? by the Prince, the Papist have an equal title.

If ability alone ought to prefer men to employment and the King ought not to lose the use of any part of his subjects, Papists are to be tolerated.

If liberty of conscience oblige all parties to the Prince and made them wholly depend upon him, then the Papists may be tolerated.

18 If to force dissenters to one’s opinion be contrary to the rule of religion and to no purpose, Papists should be tolerated.

20 If suffering for it will promote any opinion, Papists are to be tolerated.


3 The papsist can be as little satisfied with or reconciled to the government by toleration as restraint. Liberty of conscience being here intended to unite the protestants under one common interest, under one protector in opposition to them, and so can not oblige them.

3 Persecution of them alone can as little make them unite with the other parties, as toleration can make them divide amongst themselves. Both which effects follow a general toleration or persecution of other dissenters.

4 In punishing papists for their religion, you are not so liable to mistake ??? (agreement?) by prosecuting that as faction which is indeed conscience. For those who are guided  as in persecuting other dissenters for those who are absolutely disposed of by an authority supposed infallible, whose interests is directly opposed to yours, must necessarily be all factions however some of them may be similarly conscientious. 

Though persecution usually makes other opinions be sought after and admired; yet perhaps it is less apt to recommend popery than any other religion. 1st because persecution is its own practice and so begets less pity. 2ndly The principle and doctrine of that religion seem less apt to take inquisitive heads or unstable minds, men commonly in their voluntary changes do rather pursue liberty an enthusiasm, wherein they seem their own disposers, rather than give themselves up to the authority and imposition of others. Besides Popery, having been brought in and continued by power and force joined with the art and industry of the clergy, it is the most likely of any religion


to decay, where the secular power handles them severely or at the least takes from them those encouragement and supports they receive from their own clergy.

Query: Whether the Papists or Protestants gains most proselytes by the persecution they suffer in those changes at the beginning of the reformation?

7 Standards-by will be less dissatisfied with severity used to papists then to others because it is lex talionis. Besides he cannot be thought to be punished merely for conscience who owns himself at the same time the subject and adherent to an enemy prince.

8 That a prince ought to encourage knowledge, from whence springs a variety of opinions on religion, matters not at all for papists who own an implicit faith and acquiesce in ignorance and who may as well submit to the imposition of their own lawful prince, as those of a foreigner. The infallibility of both sides as being equal.

All the rest that is said (on page 8) favours the toleration of papists less than others.

9 Twill be less dangerous to discontent the papist when the other parties are pleased then now. Especially when indulgence will less secure you of their fidelity to the government then that of others. Every subject has an interest in the natural prince, whilst he does not own subjection to another power.

Liberty will less destroy the hopes and pretensions of papists that desire public mischief, then of others. Because they are backed by the foreign power and are obliged to propagate their religion by force. 

A small part of the trade of English is (I think) managed by papists ad the imposition of religion will lessen their trade


It is perhaps a reason why they should not be tolerated.

10 If it be the King’s interest to be head of the Protestants this bespeaks no indulgence for Papists. Unless the persecuting of them here will draw the same wage or worse upon the protestants beyond sea. And how far own that may be advantageous to us in the present posture off of affairs, can only be determined by those who can judge whether the Hugonots in France or Papists in England and likeliest to make head[way], to disturb the respective governments.

11 I doubt whether upon protestant principles we can justify punishing of Papists for their speculative opinions on Purgatory, transubstantiation, as if they stopped there. But possibly no reason nor religion obliges us to tolerate those who practical principles necessarily lead them to the eager prosecution of all opinions and the utter destruction of all societies, but their own so that it is not the difference of opinion, but their dangerous and factious foments in reference to the state which are blended with and make a part of their religion that excludes them from the benefit of toleration who would think it fit to tolerate either Presbyterian or Independent, if they made it a part of their religion to pay an implicit subjection to a foreign infallible power?

13 Severity to papists only cannot make them unity with any other party. nor toleration disunite them among themselves.

IRAA 3.0: Second Look Review for Adults

Today I am testifying on behalf of the Second Look Amendment Act of 2019, sometimes dubbed IRAA 3.0. The initial IRAA, the Incarceration Amendment Act, was designed to provide post-sentencing review to those who committed crimes as juveniles and were given life or near-life sentences. IRAA 2.0 extended eligibility and clarified some issues in the original bill, and the current incarnation is designed to provide that same post-sentencing review to those convicted of crimes from 18-25 years old.

I represent the Georgetown Pivot Program—a reentry program based at Georgetown University that began last year. I am also a DC resident, residing in Ward 4, and I support the Second Look Amendment Act.

No discussion of DC sentencing review can proceed without a few basic facts:

  1. The US has the highest incarceration rate in the world. We have less than 5% of the world’s population and more than 20% of the world’s prisoners.[1]
  2. Most of the march towards mass incarceration is driven by state-level policies rather than federal law. 83% of prisoners are incarcerated in state prisons and local jails.[2]
  3. DC has the highest incarceration rate of any state or territory in the US: yes, we have a higher incarceration rate than Louisiana, Oklahoma, Mississippi, or Georgia. When it comes to imprisoning our citizens, DC is #1.[3]
  4. The DC Council has repeatedly chosen policies that enhance sentences in a way that increases the number of our fellow citizens who are incarcerated, despite evidence that this is not making DC’s residents any safer. At the current incarceration rates, there is ample evidence that reducing sentencing at the margin would decrease crime.[4]
  5. Today, our crime rate is near its fifty-five year low—and a small recent uptick should not be cause to repeat the disastrous policies of the 70s, 80s, and 90s that got us our #1 status.
  6. Instead, we should work to reduce sentences across the board—we must become significantly less punitive or else continue to lose our fellow citizens to the Federal Bureau of Prisons.[5]
  7. The Second Look bill currently being considered does this in a very small way. Its greatest weakness is that it countenances post-sentencing modifications ONLY for those whose crimes were committed before the age of 25, on the theory that the young adult brain is still developing. However, we really ought to offer post-sentencing modifications for everyone regardless of age since we are assessing rehabilitation, not the degree of culpability.[6]
  8. The American Law Institute, an association of law faculty that maintain and amend the Model Penal Code, updated the MPC with Second Look post-sentencing review in 2017 in light of the inadequacies of parole board reviews. It behooves us to follow them, at least for those offenders who were 18-25 years old at the time of their offence.[7]
  9. A Second Look is an evaluation of rehabilitation: it gives us an opportunity to live up to the ideal of prisons as correctional rather than merely retributive. Punishment is—and must be—predicated on the idea that the offender, like the victim, is a member of our community who will have the opportunity to be restored to full membership.

At the Pivot Program we have 15 Pivot Fellows studying entrepreneurship alongside a traditional liberal arts curriculum, including two IRAA 1.0 clients. Through my work with the Georgetown Prisons and Justice Initiative, the Prison Scholars Program, and the Paralegal Program I’ve had the opportunity to work with several IRAA 1.0 clients, as well as many who would qualify for post-sentencing review under the Second Look legislation.

We are incredibly lucky to have started our programs at around the same time that the IRAA clients were returning to DC—and I can report that our programs both inside and outside the Jail are desperate for more participants like the ones that IRAA has granted us. 

Kareem McCraney, Charles Fantroy, Tyrone Walker, Halim Flowers, Troy Burner, Mustafa Zulu, and Momolu Stewart: I have been working with incarcerated students for almost a decade and these are among the best students I have taught in all that time. But we are just as excited to work with students who would qualify  for review under the Second Look Act. In particular I would highlight the current mentors on the Young Men Emerging unit at DC’s Correctional Treatment Facility: Joel Caston and Michael Woody.

Michael Woody and Joel Caston with Savannah Sellers

These men seem exceptional to all who meet them, and they are truly excellent students and teachers. But the truth is that there hundreds more like them among our fellow citizens imprisoned in the FBOP—men and women whose talents are currently unavailable to us here in the District, and slated to be wasted for decades longer, because they received very long sentences for crimes committed after their 18th birthday, yet while they were still too young to have the full cognitive capacities of adulthood.

I want to point to three challenges that will continue to plague returning citizens in DC, whether from IRAA-style post-sentencing reviews or the 5,000 citizens returning to the District every year:

  1. Returning citizens still face significant obstacles to employment for crimes that are unrelated to the types of work they pursue. The stigma of incarceration is still far too great, and the best evidence suggests that merely “banning the box” without other supports extends this stigma to all young Black and Latino men. Thus we simply MUST find ways to create fewer returning citizens by incarcerating fewer of our fellow citizens in the first place, and to create positive employment signals for returning citizens that will combat this stigma. 
  2. Housing insecurity is a major problem for returning citizens generally—and this has hit the Pivot Program in predictable ways, with several promising fellows losing significant class and internship time as formerly-secure housing situations became unsettled. The Pivot Fellows were DC residents before they were shipped off to the Federal Bureau of Prisons but they have returned to a rapidly and severely gentrifying city. Often their reentry plans require them to reside with family members who have left the District in the intervening years—and this effectively outsources our obligations to Virginia and Maryland. Allowing former DC residents to secure residency status through MORCA so that they can continue to access DC’s reentry programs while temporarily residing outside of the District is the least we can do for them. As I have tried to show, we otherwise risk losing some extraordinary human capital to other localities.
  3. Finally, our program is highly dependent on the $10/hr subsidized training wage from DC DOES which supports both the Pivot Fellows’ education and work experience. The training wage is designed to be unpalatably low so as to incentive the search for full-time unsubsidized employment, which isn’t fully compatible with our program’s goal of keeping Pivot fellows engaged over the whole ten month program. At Georgetown we subsidize these stipends to raise the effective hourly rate to $15/hour. It would be helpful to our work if they were able to cover a living wage either as a base rate or as an incentive bonus for consistent performance. While we are happy to subsidize the DC DOES stipend in this cohort,  continuing to do so is a significant private philanthropy burden that will hamper our ability to scale. If DC is serious about raising the minimum wage, then training wages like those offered by Pivot and Project Empowerment must rise as well.

DC is in an enviable position: we are poised to do the right thing for all our fellow citizens. We should pass Second Look, end a significant injustice, and reap the dividends. Thank you for your time.

Footnotes (aka The Receipts)


[1] Peter Wagner and Alison Walsh, States of Incarceration: The Global Context 2016, available at https://www.prisonpolicy.org/global/2016.html

[2] Wendy Sawyer and Peter Wagner, Mass Incarceration: The Whole Pie 2019, available at https://www.prisonpolicy.org/reports/pie2019.html

[3] Peter Wagner and Alison Walsh, States of Incarceration: The Global Context 2016, available at https://www.prisonpolicy.org/global/2016.html

[4] James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America. (New York: Farrar, Straus, and Giroux, 2017) and Daniel Roodman, The Impacts of Incarceration on Crime, Open Philanthropy Project 2017, available at: https://www.openphilanthropy.org/files/Focus_Areas/Criminal_Justice_Reform/The_impacts_of_incarceration_on_crime_10.pdf

[5] Urban Institute, A Matter of Time, available at: http://apps.urban.org/features/long-prison-terms/a_matter_of_time_print_version.pdf

[6] Gideon Yaffe, The Age of Culpability: Children and the Nature of Criminal Responsibility. (Cambridge: Oxford University Press, 2018)

[7] Richard Frase, Second Look Provisions in the Proposed Model Penal Code Revisions, 21 Fed. Sentencing R. 194 (2009), available at http://scholarship.law.umn.edu/faculty_articles/522 and Meghan J. Ryan, Taking Another Look at Second-Look Sentencing, 81 Brook. L. Rev. (2015). Available at: http://brooklynworks.brooklaw.edu/blr/vol81/iss1/4

Entrepreneurship and Returning Citizens

(I’ve spent a good deal of the last six months working on the Pivot Program that launched last month. Pivot combines internships with college-level classes in business, entrepreneurship, the liberal arts, and humanities. Now that journalists are starting to cover it, I can share some reflections from this work!)

Washington, DC has the highest incarceration rate in the country. And this country has the highest incarceration rate in the world. More than 8,000 people go to prison or jail from DC each year, and each year more than 5,000 come back.

That means that there are probably 67,000 “justice-involved” DC residents, and while we have fairly strong “ban the box” laws in place it’s clear that a history of incarceration still affects people’s prospects. From my work with incarcerated students at JCI developing the Prison Scholars Program and the UB Second Chance College Program, I’ve often heard from students inside that they want more training in business and entrepreneurship. They recognize that one way to avoid discrimination in the job market is to work for themselves. (There are still many other collateral consequences of a conviction that can trip them up.)

Now, most of my friends are in the liberal arts, and so we’re all just a little suspicious of business schools. The dismal science of economics as a kind of worldly philosophy makes sense to us: the myths tell us that the ancient philosopher Thales fell into a well while staring at the sky,  but his observations meant that he was also able to predict the weather and corner the market on olive oil presses. Business as a vocation (like law,  medicine, the military, or the clergy) is a modern fact that confuses traditionalists and enrages critics of capitalism.

Yet at its best, an entrepreneur is someone who looks around them and asks: what can I do to serve my fellow citizens? What can we do to improve the world? What should we do together? Many entrepreneurs do not start their own businesses: they work within existing institutions to change and improve them. Cultivating the entrepreneurial mindset is about helping participants see themselves as agents who can plan and co-create value with their customers, neighbors, and fellow citizens. Seeing oneself as efficacious and mutually responsible is thus an important element of entrepreneurship. 

If you’re a regular reader, you’ll recognize that what I described above is also the way that we in civic studies describe citizenship. It’s an idea from Hannah Arendt, Elinor Ostrom, and Jane Mansbridge: to act as a co-creator of our shared world. I think, at its best, that entrepreneurship is a particular approach to citizenship, and not simply a matter of disrupting older industries in pursuit of profit. It’s about trying to find new ways of being of use to each other. And people with a history of incarceration are increasingly marginalized and rendered superfluous in our society–they need and deserve a way of being treated as dignified and valuable.

Obviously, we cannot ignore the issue of race and racism. Mass incarceration has been called “The New Jim Crow” because it disproportionately hurts African-Americans and their communities. There can be no doubt that incarceration in the United States is driven by white supremacy, even in cities like Washington, DC that were majority Black during the time that they incarcerated so many. (See James Forman’s work for more on this theme!)

It also disproportionately targets the poor: one study found that over the past thirty years, between 40 and 60 percent of prison inmates were below the federal poverty line at the time of their most recent arrest. More recent work suggests that incarcerated individuals have pre-incarcerated incomes 41% lower than their non-incarcerated peers. Raising returning citizens out of poverty is a moral obligation, if for no other reason than to prevent further crime and incarceration!

Those least well-served by our District’s schools are also most likely to be incarcerated. Nationally formerly incarcerated people are twice as likely as the general public to have no high school credential at all, and more than six times more likely to have a GED. I think this means that incarceration is not (just) an individual failure, and we can be sure that its costs are not just born by the incarcerated. Children of the incarcerated are massively more likely to be incarcerated themselves, and neighborhoods with high rates of incarceration are made poorer by the loss of their neighbors. Each imprisoned man or woman has talents that are lost to their communities, and the stigma of a criminal record perpetuates that loss after their release.

Sometimes the rhetoric of “human capital” hurts my heart. Prisoners and formerly imprisoned people are not just lost wages and unfounded startups: they’re our fellow citizens, our fellow human beings. They’re my friends and my students! But in a world dominated by profit, loss, growth, and stagnation it seems to work better to make the argument about “hidden gems in the rough.” That’s fine: if that’s what it takes to oppose mass incarceration today, that’s what we’ll do. But the United States has millions more people incarcerated than it ought to have–and we need to tackle that sooner rather than later.

We know that the Pivot Fellows can be leaders. I’ve seen this firsthand with the Friend of a Friend Program and the Alternatives to Violence Project. Incarcerated and formerly incarcerated people who succeed in college courses develop the leadership skills that are useful both inside and outside the prison system. Imprisoned college students and graduates frequently become positive role models for younger prisoners, and have created service programs that focus on conflict resolution, youth development and other issues that are critical to personal transformation. Formerly incarcerated professionals like Dwayne Betts, Shon Hopwood, and Chris Wilson are both positive role models and reminders of that lost talent locked away in our nations’ prisons and jails. But these extraordinary men are not so unusual–there are tens of thousands more like them behind bars. I am certain that the Pivot Program will be the incubator for some who I will soon be glad to list alongside them.

Georgetown is making great strides in its Jesuit commitments to “visit the prisoner.” We’ve developed credit-bearing courses at the DC Jail, and a Paralegal Studies Program for former jailhouse lawyers in partnership with the Mayor’s Office on Returning Citizens Affairs. I’m incredibly proud to work with the team at the Prisons and Justice Initiative and the McDonough School of Business.

Foucault on School-Prison and Prison-School Pipelines

“So successful has the prison been that, after a century and a half of ‘failures’, the prison still exists, producing the same results, and there is the greatest reluctance to dispense with it.” 

Foucault, Discipline and Punish, 277

In my mini-review of Bryan Caplan’s polemic against education, I noted that he partly ignores Foucaultian arguments for schooling-as-discipline. But Foucault’s work is difficult to understand–though it’s actually written quite well–because it redescribes our ordinary world in terms that alienate us from what seems familiar. His understanding of schooling is dependent on his unfamiliar recasting of the prison as a site of innovation in discipline–techniques which ultimately had more value in the cultivation of good workers than in the punishment of transgression or the rehabilitation of criminal deviance. 

Consider these seven principles of penal reform:

  1. The purpose of penal detention is the transformation of an individual’s behavior.
  2. Prisoners should be isolated or housed together by the severity of their crimes, their age, and their progress towards rehabilitation.
  3. Both before and during punishment, penalties should be tailored to the individual prisoner’s progress and relapse.
  4. Prisons should be spaces of educative work, where prisoners are both required and allowed to work productively at learning or practicing a trade.
  5. Both prisoners and societies have a right to an education.
  6. Prisons should be run by subject-matter experts; professionals of high moral character.
  7. Upon release, former prisoners will continue to require supervision and assistance to complete rehabilitation.

These all sound reasonable, don’t they? Compared to our current prison system, they sound humane. And yet these principles were first espoused in the early nineteenth century, and have been reiterated periodically since then as if they were innovations. I pulled them from Michel Foucault’s Discipline and Punish (269-70). What’s taking so long? Why don’t we ever seem to achieve these ideals?

Discipline and Punish is a famous work on a major topic: it’s read widely and it’s one of the most-cited books in the social sciences. And yet its insight is both widely parroted and widely ignored–usually by the same people. One way to read the book is as a guide to sociological methodology: “the purpose of the system is what it does.” I also like the longer version from Dreyfus and Rabinow, quoting Foucault:  

“People know what they do; they frequently know why they do what they do; but what they don’t know is what what they do does.” (187)

What ‘what we do’ does

Everything follows from that dictum: we know what we do, sometimes we even know why, but we are remarkably ignorant of what our collective intentions and actions do.

Do prisons reform criminals? No: the five year rearrest rate for prisoners is 76.6%. Even if we correct that for the technical parole violations that are basically a product of the system itself (and I’m not sure we should in this context–the system has to answer for those reincarcerations) the rate is probably around the 43% baseline that RAND uses to assess the efficacy of programs. (College in prison reduces that kind of recidivism.) 

Can prisons themselves be reformed? No: the entire history of prisons is a history of reform after reform, and we’ve been facing the same prison problems–and demanding the same reforms–for centuries. LITERAL CENTURIES.

What then is the point? Prisons produce criminals, and not in the “finishing school for crime” sort of way: prisons produce a whole realm of knowledge about deviance, delinquency, and criminality, but they also produce those deviants, delinquents, and criminals as the subject of research that must exist to justify our inquiry into them. As a byproduct, prisons also produce techniques for managing students, workers, and citizens, techniques that seem to have massively increased productivity and effectiveness, but have the prison both in their genealogy and their current function. In fact, it makes perfect sense from a Foucaultian perspective to say that the technologies of schools, workplaces, and politics are the true product of prisons, and prisoners are the waste byproduct, an unrecycled remainder.

Unschooling

If you want to have some fun in the classroom, tell students that the way schools function is a lot like a prison:

  • Students are grouped by their progress through a fixed curriculum, but can be advanced or held back due to individual assessments of merit or deficiency.
  • Everyone has a “permanent record” that records a mix of talent and achievement (where there is a lot of confusion over whether what’s really being assessed is innate or the product of the training).
  • Many of the most important skills we teach in school are “soft skills” like punctuality, sitting still for long periods of time, deference to authority, and self-monitoring one’s own projects and progress.

Ask an audience in the middle of a class or lecture how many of them have to pee right that moment: we hate being reminded of our embodiment in those moments, but we’ve almost all mastered sitting for long periods of time despite that fact. Urinary continence is a skill that schools can teach, even if there’s not much evidence students will remember their calculus lessons if they don’t use them.

Schools and prisons both produce individuality as a category for praise and blame, wages and good-time credits, centered in a body and a set of behaviors, yet accomplished through a network of interlocking institutions and supports. Schools and prisons make us into the kinds of embodied minds that we are–capable of having a biographical records, capable of taking responsibility for the success or failure of our own careers and rehabilitation. And yet schools are a lot better at this than prisons, which is why we now find ourselves back at the idea that prisons aren’t enough like the schools–the same schools that prisons helped us figure out how to create. You hear now of the “prison-to-school pipeline,” a line I’ve used myself.

This spring, Elizabeth Hinton name-checked Georgetown’s Prison Scholars Program in the New York Times in her argument that we should transform prisons into colleges and restore Pell Grant eligibility for all incarcerated students. I am wholeheartedly committed to those goals–a policy for which I believe there is strong bipartisan support. But the this will not solve America’s prison problem–and in many important respects it is an extension of the logic of the prison itself.

Prospects for Reform

The other major claim of Foucault’s work is that prisons are unreformable–they literally subsist on prospects of reform rather than ever actually getting reformed. And when we do “improve” prisons, we mostly do so by developing new techniques for controlling prisoners’ bodies and cultivating docility and compliance in them. As punishment has become more gentle, it has become more generalizable!

Foucault’s argument suggests that the motivations of early reformers like Beccaria and Bentham was less to make the corporal punishment common in that era gentler than it was to make it more effective at social control. I think this is generally unfair: Beccaria clearly has civic republican goals in mind, and is a forerunner of so many different civic republican and contractualist positions that he deserves the benefit of the doubt. But again one can be ignorant of the purposes to which our efforts are ultimately put. And on Foucault’s view the gentler punishments of work, solitude, and surveillance all create new techniques and disciplines for managing all sorts of people: soldiers, factory workers, students, and patients, for instance.

Instead of seeing the ultimate end of the punishment reformer’s work as creating more liberty by restraining the cruel sovereign, Foucault argues instead that reform steals the domination from the sovereign–who after all is using her power inefficiently–and appropriates it for the reformer. The reformer promises to do better–and creates an expertise and a field of knowledge with which to chart his success.

So to recap: reformers don’t fix prisons, they’ve been offering the same complaints for centuries. (The same ones we offer today!) Reformers argue for smoother and gentler punishment techniques. They promise to be punish better and thereby steal the sovereign’s monopoly on violence for themselves. They install themselves as experts and create a field of expertise to justify their exproporiation of punitive power. And they thus increase the dissemination of punitive and carceral logics, making both criminals and non-criminals worse off.

This Thing Called Abolition

Angela Davis and Joy James are my go-to writers on abolition, but Allegra McLeod’s essay on abolition is really useful for understanding the terrain, responding to various objections, and showing the reasons why “abolition” has a valence that “reform” and even “decarceration” lack. But it’s Davis who takes up the specific preconditions of prison abolition:

“In thinking specifically about the abolition of prisons using the approach of abolition democracy, we would propose the creation of an array of social institutions that would begin to solve the social problems that set people on the track to prison, thereby helping to render the prison obsolete. There is a direct connection with slavery: when slavery was abolished black people were set free, but they lacked access to the material resources that would enable them to fashion new, free lives. Prisons have thrived over the last century precisely because of the absence of those resources and the persistence of some of the deep structures of slavery. They cannot, therefore, be eliminated unless new institutions and resources are made available to those communities that provide, in large part, the human beings that make up the prison population.”

Angela Davis, Abolition Democracy, page 96.

So long as we want the kind of bureaucratized social control that depends on the various carceral techniques Foucault details, we won’t ever reform prisons. Short-lived reform efforts will give way to long periods of basic comfort with detention as the primary mode of punishment, just as they have reliably done throughout the era of the nation-state. Build a society that doesn’t require docility and we won’t need to have zones for warehousing the least docile among us. But until we do, prisoners will always be with us.

I find little hope in these prescriptions. But I think it’s worth noting that the entirety of mass incarceration in the US post-dates the publication of Discipline and Punish. Whatever has gone wrong in the US (and to a lesser extent in Great Britain) was completely off the table when Foucault was writing–and thus we could eliminate the “mass-” or “hyper-” modifier, set most prisoners free, and still probably preserve our carceral society unhampered by the deeper anarchist impulses that seemed to motivate Foucault.

Keep the social control, jettison the prison. It’s not abolition–but I agree with James Forman, Jr. that it’s taken forty years of concerted local efforts to build the racialized mass incarceration of 2.2 million people, and it’s precisely the history of those seemingly reasonable decisions that provide a roadmap for mass decarceration. We should be so lucky to have Foucault’s problems.