The False Promise of Criminal Justice Reform

The False Promise of Criminal Justice Reform

The False Promise of Criminal Justice Reform

Why we have to look past reformism and embrace the politics of prison abolition.


The movement to abolish prisons and policing in the United States was not born last spring. But after the uprisings against racist police violence that erupted across the nation in 2020, abolitionist ideas have never been more widespread, whether in the pages of previously dismissive and hostile periodicals or in the average citizen’s social media feed. That a majority of Americans believed that protesters were justified in burning down a Minneapolis police station after the murder of George Floyd offered a striking confirmation of this sea change. More concretely, a 2020 report from Interrupting Criminalization concluded that organizing in almost two dozen cities resulted in the divestment of over $840 million from police departments and a reinvestment of nearly $160 million back into communities, along with a number of victories in removing police from schools, banning military-grade weapons or facial-recognition software, and achieving greater transparency and community control over local police budgets.

Yet, for all these strides, the mainstreaming of calls to abolish the prison-industrial complex has presented its own problems for activists. As Ruth Wilson Gilmore foresaw in 2015, the heightened awareness of the horrors of racialized mass incarceration—in large part due to the publication of Michelle Alexander’s The New Jim Crow—led an “emerging bipartisan consensus” of criminal justice reformers to commandeer the public conversation, funding, and policy-making around prison reform. Co-opting the “vocabulary and rhetorical flourishes” of grassroots anti-prison movements, these reformers ultimately prize bipartisan agreement over principled political struggle, valorize “top-down technocratic tinkering,” and strictly limit their fight to freeing only those “relatively innocent” nonviolent offenders perceived to be least threatening to the status quo. By “defining the problem as narrowly as possible,” Gilmore argued, this reformist model appears to take concrete action against the prison-industrial complex but “produce[s] solutions that…will change little”—all while diverting attention and resources from more radical visions of change.

The recent George Floyd Justice in Policing Act, which passed the House of Representatives earlier this year but stalled in the Senate, offers a perfect example of the illusion of reform. Proposed by Representative Karen Bass (D-Calif.) in response to last year’s protests, the act had the veneer of bold action: It would ban no-knock warrants and choke holds, limit qualified immunity for police, create a national registry on police misconduct, promote the increased use of body cameras, bar racial profiling, and more. It received praise from elected officials and the philanthropic and pundit classes; Van Jones dubbed it “sweeping legislation to match the will of the people.” As Derecka Purnell wrote, however, for all the fanfare surrounding the act, its proposals were “woefully insufficient” and “could not even have saved George Floyd’s life.” For example, there was no chokehold involved in Floyd’s death; instead, Derek Chauvin killed him by forcefully kneeling on his neck. Similarly, given that Floyd did break the law by trying to pass a counterfeit bill, it is difficult to argue that police used his race to presume criminality. More generally, the use of body cameras has not reduced police brutality and might well give law enforcement more power to surveil citizens. For all the lavish praise it received, the Justice in Policing Act, even if passed, would amount to little more than superficial changes that allow policing as we know it to continue apace. Even more suspiciously, the bill would ultimately funnel millions more dollars to law enforcement.

Unfortunately, as Kay Whitlock and Nancy Heitzeg make clear in their new book, Carceral Con, the “misleading and false” promise of criminal justice reform is nothing new. Reform is not, as some might think, a well-intentioned, compromise-oriented approach to social change. Rather, criminal justice reform must be understood as an industry: a powerful, highly resourced, and bipartisan form of political counterinsurgency meant to stifle, contain, and repress demands for police and prison abolition. By failing to address, or sometimes even to acknowledge, the racialized logic and exploitative system that undergirds American criminal punishment, these reform agendas barely scratch the surface of—and often only help to intensify—the carceral state’s harms.

These arguments are not necessarily new: Black political prisoner and revolutionary George Jackson famously argued that reform is the “only a new way for capitalism to protect and develop fascism.” Carceral Con builds on such analyses—pioneered by generations of radicals and revolutionaries—by providing a laundry list of evidence that the prison-industrial complex cannot be incrementally reformed; it needs to be defunded and destroyed. The book is explicitly aimed at helping readers identify and see through the seductive buzzwords and policy agendas of reform coalitions that purport to respond to public outrage about policing and prisons but that, in practice, channel that energy into peripheral change. While scholars will find much in Carceral Con enlightening, the book is no standard academic text. Rather, it is a movement-building tool intended to assist readers in “critically interrogat[ing] new [reform] proposals as they arise” and in choosing the “radically different way forward” of abolition.

Kay Whitlock is a veteran abolitionist activist and writer, and Nancy Heitzeg is a professor of sociology at St. Catherine University who has written extensively on the school-to-prison pipeline. Both are longtime observers of how reform agendas can dilute movement principles, misdirect precious resources, and ultimately bolster the strength of the carceral regime rather than weakening its clutches. Together they have written a number of pieces on the deceptions and dangers of bipartisan reform, and this book serves as a robust synthesis of their years of research, organizing, and analysis.

After decades of unabashedly tough-on-crime policy, Whitlock and Heitzeg write, a “new wave of reform bipartisanship” emerged in collaboration with wealthy donors, think tanks, private foundations, and universities, all with the active participation and support of government officials. Though it spans the political spectrum to include figures as seemingly unaligned as Charles Koch and Jay-Z, this new bipartisan movement converged around cost-cutting and a private-sector-oriented agenda that presented the regime of overcriminalization and mass imprisonment as problematic not because of its harm to criminalized individuals, but because of its strain on budgets, its inefficiency, and its failure to produce meaningful “public safety.”

Yet Whitlock and Heitzeg show that, despite the purported concern with runaway costs and inefficiencies, the promised “savings” from criminal justice reform are often minor: The policies make only a minuscule dent in prison populations, and the savings are rarely reinvested in underfunded social services such as education, health care, employment, and mental health. In this “austerity-based world making,” the budgets of police and prisons remain robust, often infused with additional funding as the result of reforms that focus on individual solutions like more training, new agencies, or additional technology.

Still, some observers might ask, how can a reform be bad, even if it doesn’t go far enough? To answer that question, Whitlock and Heitzieg present overwhelming evidence that criminal justice reform actually proliferates punishment and harm. This is one of Carceral Con’s core utilities for organizers and scholars seeking to sharpen their analysis of reform as not merely ill-advised but proactively dangerous. In Camden, N.J., for example, a bipartisan reform effort to reimagine policing led to the dismantling and reconstitution of the city’s maligned police force with new “use-of-force regulations” and a “community-oriented approach” that focused on increasing foot patrols and developing community programs. The initiative, however, ultimately lined the pockets of the new—and notably whiter—police department with increased funding and equipment, massively expanding its power and resources to criminalize and punish without meaningfully curbing police abuses in the majority-Black city. This “reimagined” Camden police force gave out more disorderly-conduct citations than ever before, and complaints against it grew in kind.

Alternatives to incarceration, such as the use of community corrections, probation, or specialty courts in lieu of imprisonment, offer another site for examining how reform keeps criminalized people trapped in the same “legal, economic, and political barriers.” Probation refers to “supervised correctional control in [the] community,” with individuals diverted from prison “so long as they conform to specific supervisory requirements.” But, as Whitlock and Heitzig note, while probationers are not physically imprisoned, they are subject to intensive surveillance and draconian restrictions on their mobility and activities, and they are also required to meet strict reporting requirements, sometimes for years on end. Given the layers of rules and restrictions imposed, lapses are common, and more than 350,000 probation revocations annually lead to prison time. In addition, 30 percent of all probationers are Black, and they are more likely than white or Latinx probationers to be subject to revocations. In Pennsylvania, a state that experienced a tripling of such sentences between 1980 and 2016, probationers describe a system that is supposed to “help you” but is, in fact, a “trap.” The restrictions are both endless and unjust: Probationers cannot travel across state lines for job opportunities or school, cannot live with family or friends who have criminal records, and face jail time if they are unable to leave work in order to report to their probation officer.

Criminal justice reformers often suggest expanding probation as a means of decarceration. In Mississippi, for example, Whitlock and Heitzeg discuss how the Justice Reinvestment Initiative, a “data-driven,” bipartisan, public/private project, developed legislation, HB 585, for diverting more individuals into probation. Yet not only does probation entail “shifting management to a different venue of control” and subjecting criminalized people to a web of rules that carry the likely outcome of reincarceration; in Mississippi, it is largely a privatized, “offender-funded” enterprise that exists through the extortion of poor defendants via fines and fees. If defendants cannot pay, these private probation agencies can rearrest them. While Mississippi’s prison population did fall slightly after the legislation was signed into law in 2014, by 2019 it had begun to rise again “primarily due to probation and parole revocations,” often for extremely “minor infractions” related to the conditions of probation or parole. In other words, the probation system championed by reformers kept poor and criminalized Mississippians under a strict regime of control, subjected them to economic exploitation, and eventually placed many of them back in prison, thereby failing to deliver on the lofty promises of decarceration and a “reinvestment” of cost savings.

The explosion of probation revocations has reached the point where even bipartisan reform groups are calling for restrictions to be eased and probation sentences shortened. But Whitlock and Heitzeg show how this approach often focuses on small “procedural and technological processes for managing probation” that do little to “significantly shrink the far reach of the carceral state.” Indeed, while 37 states reduced their probation caseloads between 2010 and 2020, “many would-be probationers” were simply diverted to another “alternative” to incarceration: specialty courts. These courts generally promise defendants that their criminal charges will be suspended and their arrest records expunged so long as they comply with court mandates. Often, the specialty courts practice what is termed “therapeutic jurisprudence,” in which judges work with attorneys, treatment experts, and law enforcement to reroute defendants from behaviors deemed criminal. In practice, however, those subject to these specialty courts face a similar net of restrictions and requirements that, if they fail to meet them, result in probation or prison time.

Such examples are emblematic of how criminal justice reform elevates carceral solutions to the exclusion of other potential responses. Why have a specialty court for chronically unhoused people, Whitlock and Heitizeg ask, when they could instead be given housing, food, and mental health services, or at least referred to non-carceral community-based groups that offer support outside of a carceral context? By positing the criminal punishment system as the only arbiter for problems of harm, reform initiatives narrow the realm of the possible and in the process enforce the legitimacy of a structurally violent system.

Last July, Arnold Ventures, a private philanthropic foundation established by former Enron energy trader John Arnold, used the George Floyd rebellions to promote its “approach” to “police reform.” The approach contains much of the social justice rhetoric that abolitionists might agree with, such as investing in services and ensuring that individuals normally handled by law enforcement are able to receive care from non-carceral agencies. Yet a close reading reveals the foundation’s limiting lens: The “footprint” of the police should be “reduced,” but policing itself should not be abolished. Given that Arnold Ventures has millions of dollars to expend and dozens of partnerships with states, counties, and cities across the nation, the powerful creep of co-optation looms large, even as the abolitionist vision increasingly gains public hearings.

Importantly, for Whitlock and Heitzeg, the insidiousness of these reform coalitions lies in what they omit and obscure. Operating through a “carnival barker’s art of misdirection,” the reform consensus cloaks both the historical use of crime hysteria to discipline marginalized populations and the significant power that policy-makers could wield to address the racialized poverty, inequality, and trauma that leads to, and legitimizes, criminalization. No matter how enticing its promises, “the reform road” charted by organizations like Arnold Ventures “starts from and invariably returns to criminalization, policing, and prisons.”

It is not enough, then, to view bipartisan criminal justice reform as merely misguided or marred by “unintended consequences.” Rather, Whitlock and Heitzeg make clear that reform measures must be understood as intentional tools for strengthening the carceral state when the legitimacy of policing and incarceration are thrown into crisis. Such campaigns and the corporate-funded organizations that hawk them should be seen as willfully reactionary entities to be resisted from the start. The shift from reform as good-faith, big-tent coalition-building to a central and insidious arm of the white supremacist carceral apparatus is subtle but important—especially for abolitionists today, who face understandable questions regarding the flurry of seemingly beneficial campaigns spearheaded by high-profile organizations and figureheads, from Kim Kardashian to the Ford Foundation.

“This is a liminal moment,” Whitlock and Heitzeg write, with the future of policing and the prison-industrial complex hanging in the balance. To take just one sobering example, cities that had committed to defunding the police in 2020 are already reversing course in response to apparently rising crime, restoring police budgets to their prior excessive amounts and sometimes even increasing them. The always-lurking, well-resourced specter of bipartisan criminal justice reform has the potential to undo or disrupt a moment of unprecedented opportunity for abolitionists. This “desolate and dark” prospect, Whitlock and Heitzeg suggest, can be defeated—but it’s up to us to resist its seductions and compromises.

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