Mass incarceration, control societies, and covert racism

During our discussion of overt and covert racism (as the terms are used by Tara McPherson in “Why Are the Digital Humanities So White?”), Patrick asked about mass incarceration in the United States. Should mass incarceration be thought of as a form of overt or covert racism? If the answer is that it’s a form of overt racism, he asked, does this complicate our understanding of the difference between disciplinary and control societies — since the control society, for Deleuze, seems to be more covert?

On the face of it, racism in the U.S. criminal justice system seems highly overt. While the disparity between Black and white inmates in the U.S. has been declining since the 1990s, Black people are still over three times as likely as white people to be held in local jails, and make up around 33% of state and federal prison populations despite representing only about 12% of the total adult population. (White people, by contrast, make up around 65% of the U.S. adult population, but account for only around 30% of state and federal prisoners.) This seems blatantly racist, and it is.

On the other hand, whenever reforms are promised, the system has a way of reconstituting itself to reproduce the same old racist structures, under the rationale or guise of different aims. This might seem to be more covert. (As I think Dana said in class yesterday, something can be huge, horrible and obvious to some and yet still be covert.) After all, there are still many people in this country who will say that Black people make up the majority of prison and jail populations because they commit most of the crimes. This is false, but the criminal justice system as it’s designed allows for and promotes this kind of explanation.

But first, I want to talk briefly about the figure Patrick used during the class discussion: 2.2 million, as in the estimated 2.2 million people currently incarcerated in jails and prisons in the United States. This is a big number, but it actually fails to account for the total number of people who pass through jails and prisons each year. That number is closer to 8 million individuals (many of whom stay in jail a few days or months, but aren’t incarcerated on the particular day the official number is tallied). Additionally, neither number accounts for folks out on probation (who make up the majority of the U.S. correctional population) or bail, or those who are touched by the criminal justice system in myriad other ways (e.g., by losing jobs or custody of children, by having to pay exorbitant fines and fees, by being unable to vote or apply for housing, by being monitored by the court, etc.).

As I think Chris observed in class a few weeks ago, the criminal justice system extends far beyond the confines of prisons and courthouses; today more than ever it’s less spatially bounded than it has been in the past. This feels very control society-esque.

We tend to think of mass incarceration in the United States as incubating in the 1970s, by way of “tough on crime” rhetoric by politicians, and hatching as an explosion in the prison population in the 1980s. (If you look at a graph of incarcerated Americans over time, the line looks like a soft incline between the 1920s to ‘70s, and then shoots up all of a sudden like a formidable mountain on the graph in the 1980s.)

I’d like to think about the incubation period instead as beginning slightly earlier, before Reagan or Nixon — in 1967, with LBJ. At nearly the same historical moment as McPherson describes the development of the UNIX operating system and MLK’s assassination, LBJ’s crime commission issued a report that discussed the need for a “computer-based information system” that could help make “sentencing and correctional decisions” based on statistical estimates. Of all the needs facing law enforcement, the commissioners wrote, “the greatest need is the need to know.” This kind of knowledge — which embraced decision-making by computers processing large amounts of statistical data about criminal populations — looked very much like a kind of prediction.

Beyond acting as another form of redlining (by confining Black people to another kind of spatial boundary or enclosure, that of the prison or jail), the systems that facilitate mass incarceration rely on automation (arraignment hearings that feel like assembly lines, plea deals to move people through the courts more quickly) and increasingly computation (from technologies like CompStat to predictive policing and risk assessments, which we’ll be presenting on tomorrow) in ways that feel closely tied to this period in the late ‘60s and the kind of knowledge envisioned by LBJ’s commission.

I have to run, but to give just one example of the old system reconstituting itself to reproduce the same old racist structures under the rationale or guise of different aims, we could look at the bail system. In 1966, a major bail reform act passed that mandated that non-capital defendants be released on bail or personal recognizance. This seemed like a win for people who cared about civil rights, because previously there was no guarantee that a defendant would released at all, and so many Black and brown folks were simply detained while they awaited trial. The new system isn’t much better, insofar as it compounds punishments for poor folks (who may have to choose between losing their job or kids — by staying in jail — and raising just enough money to pay a bondsman to bail them out, which bondsman they’ll then be indebted to, with interest added, even if they’re found not guilty). The system that’s likely to replace it, at least in part (determining how bail is set with an algorithm, as we’ll talk about tomorrow), may offset the “decision-making” process to an algorithm, but does little to address the underlying issues — one of which is that the purpose of bail is to incentivize defendants to show up for their trials, not to penalize them for being arrested. The harms done by the bail system are now well-known, which might make the racism it reproduces seem overt; but because responsibility is spread out across so many people, all of whom can plausibly claim to be just doing their jobs — and because people with privilege and power are seldom touched by the system in the same way — it remains markedly pernicious and difficult to change, whether or not it’s covert.