Beyond Mass Incarceration?

Abstract

This symposium is a timely, welcome and valuable addition to the developing body of work that strives to draw productive linkages between accounts of the problems of contemporary democratic politics, the vagaries and extravagances of punishment in advanced capitalist countries today and efforts to sketch how these matters might be theorised, approached, and done differently. We therefore want to use these brief reflections on the papers to take stock of the forms of connection that are emerging between democratic theory and mass incarceration and to suggest some paths for future work. Why has this become an important challenge now? Why has it been missing until lately? Which kinds of work need to be so connected, and to what ends?To say that this collection is timely, or that the work is now developing, is anything but a cause for (self) congratulation. Very often when we say that something is timely – in the present case, for example, exploring the connections between rigorous empirical investigation into the dynamics of mass incarceration and theories of democracy – we really mean that it is way past time; that it should have been initiated long ago; and sometimes that the precious time remaining in which it might make a productive difference is slipping away, or might already have elapsed. This also tends to suggest that something has until lately been inhibiting the making of the necessary connections.What that something might be exceeds our scope here, and is in any case the subject of Bernard Harcourt's pointed and important contribution to this volume, and a key animator for several others. It is undoubtedly a matter of perplexity and one that demands explanation. Some weird concatenation of conditions, of the kinds that Pierre Bourdieu often analysed so insightfully – in the socialization of young academics and the incentives structures of their disciplines perhaps, alongside a certain fatalism with regard to the irresistibility of mass incarceration, combined with the scary state of public discourse that includes eager hit squads quite ready to monster dissidence for fun and profit – produces blocks against insight.1 Just as the elephants are always “in the room” the thing here that is “invisible” is not un-seeable, just not seen. Harcourt's conclusion is arresting and appealing in its honesty: “It is clear that prisons are invisible, but it is not entirely clear how they can be brought into the light.”This collection is also timely in another sense, though not one that is much discussed in its pages. Having arrived at a moment when the onward march of mass incarceration has at least taken a pause, the alibi of inevitability loses a great deal of its force. This is in no way to suggest that the era of mass incarceration is over, still less its counterparts in other forms of systematic exclusion and stigmatization of the kinds that Elizabeth Anderson sets out so clearly here. That would be akin to interpreting every winter cold snap as somehow disproving the existence of anthropogenic climate change, as all too many are too ready to do. It is however a moment at which mass incarceration may be more vulnerable to certain forms of strategic intervention,2 and one at which a variety of forms of “innovation” appear to replace or supplement it. These circumstances demand a new wave of political evaluations comparable in ambition to the critiques offered by Stanley Cohen and others in the 1970s and 80s of “net widening” and the dispersal of social control.3 Are the novelties that we are likely to witness merely new gadgets, of the kind that neo-liberalism is adept at creating,4 or re-framings of a more far-reaching nature? The point is that any attempt to even pose the necessary questions properly will demand simultaneous and collaborative efforts both at documentation and empirical inquiry and at delineating their implications on and for the polity more broadly considered.One difficulty that attends all such projects of course is the low regard for “theory” in the eyes of many – its high status within the academy being more or less symmetrically matched by the contempt the word engenders in many practical people. Those of us who wish to sustain the value of theoretical discourse in the face of such negations (without resorting to commonplace slogans - “nothing so practical as a good theory” and similar consoling observations) may need to work a bit harder than some of our forebears to demonstrate its value in enriching or enhancing or simply defending democratic principles.A second problem lies in the unsustainability of “methodological nationalism” in a networked world—coupled with its tenacity in formulating our problems and deciding what matters, what most troubles us, what problems most claim our attention.5 To put the matter crudely, the long shadows of mass incarceration and capital punishment necessarily loom large in American critics' view of their own predicament. Yet without a more informed sense of how these relate to penal arrangements in the rest of the world they may have limited opportunity either to assess just how peculiar, or otherwise, the exceptionality of contemporary American institutions really is, or to arrive at a balanced estimation of the significance of these phenomena for American political culture. On the other hand, these dramas provoke an unstable response elsewhere in the world, perhaps especially in Europe. To cut a very long story short we are apt to respond to these phenomena either as if they were only responses to identical sets of convergent pressures (in which case we get European penal politics as a kind of clone – the same thing, only smaller); or we may be inclined to see them as indicative of an American penal culture entirely deficient in intermediate institutions and buffers, a juggernaut without brakes (in which case it is something exotic, relevant only as an awful warning). But the first of these options sounds like hype, the second denial; and neither tells us very clearly what can or should be done, on either side of the ocean.So just how should we go about reacquainting democratic theory with the study of mass incarceration in particular and punishment in general? How might the former alter the ways in which we think about, and research and evaluate the latter? Why should the carceral state command the attention of democratic theorists? What questions open up if we examine punishment though the lens of democratic theory and practice?As these articles indicate, attention to these matters may have come late and may have been impeded by many sources of myopia, hypermetropia, attention-deficit and other disorders of scholarship. Nevertheless, as the collateral consequences of mass incarceration have struck both wide and deep it has ceased to be the preserve of criminological specialists and has at last started to command the attention of sociologists, political scientists, and political theorists. At this point, and in response to the papers gathered here, we think there are four main ways in which the interplay between punishment and democratic theory is being developed.The first is to raise the puzzle, and try to explain, the invisibility of the prison and of punishment in both democratic theory and political science. This can be done in terms of a historical enquiry into the disconnection between the study of democracy and the study of punishment, or as an analysis of the relative absence of the prison from contemporary political analysis and debate. As mentioned, Bernard Harcourt addresses both these questions. He traces the historical story via a brief encounter with Tocqueville– “democratic theory and the penitentiary were born together, but separated at birth.” He also begins to think about how the prison is rendered invisible through the workings of what he calls “virtual democracy.”A second line of analysis seeks to extend the critique of mass incarceration by situating it within the frame of democratic theory and practice. Much of the work on democracy and punishment in recent years has focused on the impact of political systems on punishment—whether in terms of the advent of governing through crime,6 the rise of symbolic and populist political forms;7 the incentive and opportunity structures created (or blocked) by different political arrangements,8 or the mobilisation of social movements in the penal field.9 But thinking about punishment through the lens of democracy also calls for analyses of the shadow mass incarceration casts over democratic politics.10 To think democratically – rather than simply in crime control terms – about punishment is to ask about the collateral effects of the transformations of the carceral state upon political life and participation, for the formation of civic and political identities, and the associational life of impacted communities. The recent body of work on felon disenfranchisement is most obviously of importance here. But this has formed a jumping off point for the emergence of a broader research agenda on what Weaver and Lerman (2010) term the “political consequences of the carceral state.”11 Several of the papers in this issue speak to this question. Thorpe examines how prison building programmes lock the economic fate of poor white rural communities to the penal exclusion of young black urban males. Turner analyses the hailing and political misuses of “public opinion” with similar analytic purposes in mind. Anderson cogently reminds readers that mass incarceration stands as one among several modes of “outlawing” that damage the quality of democracy, whether understood as a membership organization, a cultural formation of civil society, or as a mode of governance.A third—rather more established and well-trodden—path entails finding within penal and political theory arguments for restraining the reach of the penal state, whether via desert theory, penal communication or republicanism. Democratic theory has, arguably, been an under-utilised resource in such normative thinking about justifying and limiting the scope of state punishment. It is a field that might usefully be mined further in order to make the numerous sage recommendations for penal moderation or parsimony more compelling and better grounded—and we and others have recently intimated that the concept of legitimacy might prove to be a useful meeting ground for extending that conversation.12 This strand of penal theory is represented in this issue by Richard Dagger. Dagger develops the idea of fair play as a justification for, and constraint upon, punishment, showing why it offers affirmative answers to the four criteria by which one can ask “are there too many prisoners?” But he also begins to link this idea to the broader notion of the democratic polity as a “co-operative enterprise” –one with an obligation to seek to return prisoners to full participation in that enterprise. In so doing Dagger offers grounds for questioning the democratic credentials of a society that punishes its citizens in the way that the American polity currently does. Quite a few criminologists in the US have taken steps in these directions, sometimes in alliance with progressive administrators and practitioners, and those parties need to be both supported and challenged by democratic theory.13A fourth point of connection is to be found in the use of democratic theory as a resource for exploring strategies of penal reform and for more broadly reimagining how democratic societies might respond to crime. This has been a lively but still nascent theme with recent literature on democracy and punishment, largely couched as a (sometimes overly polarized) debate between proponents of insulating criminal justice from political control14 and advocates of greater democratic participation in crime control.15 Several papers in this issue take up this debate: David Green and Elizabeth Turner in different ways advocate expanding the domain of democratic deliberation in the crime control field. Copson offers a critique of insulation and mobilises the idea of “utopia as method” (following Ruth Levitas) as a device for fashioning alternatives. Bennett tackles head on the normative question of why we should democratize criminal justice, largely through a sympathetic dialogue with Albert Dzur's recent work – posing some sceptical challenges to what he calls the “correction thesis” (more public involvement generates better decisions) while defending Dzur's larger and under-explored claim about “common ownership” (namely, that citizens are responsible for the punishment enacted in their name and thereby obliged to take part in its practices).A research programme which seeks to deepen the exchange between democratic theory and punishment needs to travel further along all four of these pathways. But to these we would also like to add another strand which is a focus of our own current and future work.16 This strand concentrates on the aims and practices of crime control institutions - police, probation, prisons, etc – and asks from the standpoint of democratic theory (and hence of the good society) what one tasks these institutions to do. The key question here is how does one produce criminal justice institutions that contribute to democratic development and that build civic virtues. Can this democratic ambition for criminal justice be justified, and if so how? What might one require of different criminal justice institutions if we conceived of their purposes at least in part in these terms? How would such institutions have to be re-made and re-imagined if they are to become agents of a deeper democracy?This, it seems to us, offers an exciting agenda for theorisation, empirical enquiry and civic engagement. It offers a new, political, mode of judgment and critique of actually existing police and penal practices. It reminds us that policing and punishment are always about more than just the regulation of crime. As the papers in this symposium so powerfully attest, they are also inescapably entangled with the question of how to foster and sustain better democratic governance.