What has it really cost the United States to build the world’s most massive prison system?
To answer this question, some point to the nearly two million people who are now locked up in an American prison—overwhelmingly this nation’s poorest, most mentally ill, and least-educated citizens—and ponder the moral costs. Others have pointed to the enormous expense of having more than seven million Americans under some form of correctional supervision and argued that the system is not economically sustainable. Still others highlight the high price that our nation’s already most-fragile communities, in particular, have paid for the rise of such an enormous carceral state. A few have also asked Americans to consider what it means for the future of our society that our system of punishment is so deeply racialized.
With so many powerful arguments being made against our current criminal justice system, why then does it persist? Why haven’t the American people, particularly those who are most negatively affected by this most unsettling and unsavory state of affairs, undone the policies that have led us here? The answer, in part, stems from the fact that locking up unprecedented numbers of citizens over the last forty years has itself made the prison system highly resistant to reform through the democratic process. To an extent that few Americans have yet appreciated, record rates of incarceration have, in fact, undermined our American democracy, both by impacting who gets to vote and how votes are counted.
The unsettling story of how this came to be actually begins in 1865, when the abolition of slavery led to bitter constitutional battles over who would and would not be included in our polity. To fully understand it, though, we must look more closely than we yet have at the year 1965, a century later—a moment when, on the one hand, politicians were pressured into opening the franchise by passing the most comprehensive Voting Rights Act to date, but on the other hand, were also beginning a devastatingly ambitious War on Crime.
From Voting Rights to the War on Crime
The Voting Rights Act of 1965 gave the federal government a number of meaningful tools with which it could monitor state elections and make sure that states with a particularly grim history of discriminatory voting practices would make no voting policy without its approval. The act had been intended to combat the intimidation and legal maneuvers—such as passage of poll taxes, literacy requirements, and so-called “Grandfather clauses”— that had left only 5 percent of black Americans, by the 1940s, able to vote, despite passage of the 14th and 15th amendments after the Civil War.
But the very same year that Lyndon Johnson signed the Voting Rights Act of 1965, he also signed another Act into law: the Law Enforcement Administration Act (LEAA), a piece of legislation that, well before crime rates across America hit record highs, created the bureaucracy and provided the funding that would enable a historically and internationally unparalleled war on crime.
So, at the very same moment that the American Civil Rights Movement had succeeded in newly empowering African Americans in the political sphere by securing passage of the Voting Rights Act of 1965, America’s white politicians decided to begin a massive new war on crime that would eventually undercut myriad gains of the Civil Rights Movement—particularly those promised by the Voting Rights Act itself.
From the War on Crime to Mass Incarceration
Thanks to LEAA and America’s post-1965 commitment to the War on Crime, and more specifically, thanks to the dramatic escalation of policing in cities across the nation as well as the legal changes wrought by an ever-intensifying War on Drugs, between 1970 and 2010 more people ended up in prison in this country than anywhere else in the world. At no other point in this nation’s recorded past had the economic, social, and political institutions of a country become so bound up with the practice of punishment.
By the year 2007, 1 in every 31 U.S. residents lived under some form of correctional supervision. By 2010, more than 7.3 million Americans had become entangled in the criminal justice system and 2 million of them were actually locked up in state and federal prisons. By 2011, 39,709 people in Louisiana alone were living behind bars and 71,579 were either in jail, on probation, or on parole. And this was by no means a “southern” phenomenon. In Pennsylvania, 51,638 people were actually locked behind bars in 2011 and a full 346,268 lived under some form of correctional control by that year.
The nation’s decision to embark on a massive War on Crime in the mid-1960s has had a profound impact on the way that American history evolved over the course of the later 20th and into the 21st centuries. As we now know from countless studies, such staggering rates of incarceration have proven both socially devastating and economically destructive for wide swaths of this country—particularly those areas of America inhabited by people of color. This nation’s incarceration rate was hardly color blind. Eventually one in nine young black men were locked up in America and, by 2010, black women and girls too were being locked up at a record rate.
Diluting our Democracy
So how did this overwhelmingly racialized mass incarceration end up mattering to our very democracy? How is it that this act of locking up so many Americans, particularly Americans of color, itself distorted our political process and made it almost impossible for those most affected by mass incarceration to eliminate the policies that have undergirded it at the ballot box? The answer lies back in the 1870s and in a little-known caveat to the 14th Amendment.
Ratifying the 14th Amendment was one of Congress’s first efforts to broaden the franchise after the Civil War. A key worry among northern politicians, however, was that since white southerners could no longer rely on the notorious “three-fifths” rule to pad their own political power, they would now try to inflate their census population for the purposes of representation by counting African Americans as citizens while denying them to access the ballot.
So, to prevent any power grab on the part of ex-Confederates, Congress decided to add so-called Section 2 to the 14th Amendment. Firstly it stipulated that any state that “denied” the vote “to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States” would have its representation downsized in proportion to the number of individuals being disenfranchised. Secondly, Section 2 allowed for the disenfranchisement of otherwise eligible citizens—without affecting representation—if they had participated “in rebellion, or other crime.” The idea here was to keep those who had committed crimes against the Union and those who might still be in rebellion against the Union from wielding political power in the wake of the Civil War.
This latter provision of Section 2, however, proved damaging to black freedom—political and otherwise. Almost overnight, white southerners began policing African Americans with new zeal and charging them with “crimes” that had never before been on the books. Within a decade of the Civil War, thousands of African Americans found themselves leased out and locked up on prison plantations and in penitentiaries.