Mass Incarceration Was Always Designed to Work This Way
Victoria Law on the Historical Inevitability of the Modern Day Prison System
As of 2019, the United States has less than 5 percent of the world’s population but 25 percent of its prison population.
In 2019, 2.2 million people were locked in the country’s (adult) jails and prisons. If you add in people locked in juvenile detention, immigrant detention, and military prisons, that number rises to approximately 2.3 million people locked behind bars.
Then there are the people under correctional supervision, which means they’re under some form of surveillance and restriction either instead of or in addition to a jail or prison sentence. These forms of supervision include house arrest, electronic monitoring, parole, and probation. Individuals are not locked behind bars, but their movements are narrowly circumscribed and any violation of the myriad rules can result in jail or prison. If you count them, the total number of people under some form of correctional control rises to 6.7 million.
At least 4.9 million people cycle through the nation’s 3,163 jails each year. The majority of people in jail have not been convicted.
Some will spend a day or two in jail before being released either on bail, meaning that someone paid money for their release pending trial, or on their own recognizance, meaning that a judge allowed them to go home so long as they promise to return to court. Others remain in jail because they cannot afford to post bail.
How did we get to this point? Some might assume it’s because our criminal legal system is broken and in need of repair. But if we look at the history of prisons in the United States, we can see that the system of mass incarceration isn’t merely ﬂawed or broken but is operating as it was designed: to sweep society’s problems (and people seen as problematic) behind gates and walls where few have to see them.
The modern-day prison is a relatively new phenomenon. Before 1773, people were typically jailed while awaiting judgment; their punishments were generally physical and vicious—ﬂoggings, time in the stocks, and executions. In the United States, imprisonment as punishment began with the opening of Philadelphia’s Walnut Street Jail in 1773.Advocates, including currently and formerly incarcerated people and their loved ones, are challenging and, in some instances, overturning draconian laws.
At the Walnut Street Jail, groups of people served their sentences conﬁned together in large rooms. There was no pretense at rehabilitation; people were simply held until they ﬁnished their sentences, often subject to violence and attacks by people incarcerated alongside them as well as their jailers.
In 1790, the jail added a new cellblock, the Penitentiary House. There, people were held in complete isolation. It was the start of a new model—imprisonment as penitence. Taking its name from its mission, the penitentiary was designed to inspire (or coerce) penitence in those who broke the law. People were locked by themselves in cells for twenty-four hours each day with no human contact, ostensibly to reﬂect on and repent their criminal actions.
In 1829, Pennsylvania opened the 250-cell Eastern State Penitentiary in Philadelphia. Again, people were held in complete isolation; they were allowed two half-hour stretches per day in a small yard adjoining their cell. These periods were timed so that no two prisoners would be outside at the same time, thus rendering communication impossible. (Cellblocks built in later years eliminated the outside recreation yard.) Inside, the penitentiary’s stone walls made it impossible to hear voices from other cells. Not only was the extreme isolation psychologically brutal, but guards also devised physical punishments, including the Iron Gag—a device clamped onto the tongue while a prisoner’s arms were crossed and chained behind the neck causing the tongue to tear with any movement— and the water bath, in which guards doused prisoners in cold water and then chained them to a wall for the night.
“I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inﬂicts upon the sufferers,” wrote novelist Charles Dickens after touring Eastern State in 1842. “I hold this slow and daily tampering with the mysteries of the brain to be immeasurably worse than any torture of the body; and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the ﬂesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore the more I denounce it, as a secret punishment which slumbering humanity is not roused up to stay.”
Eastern State ofﬁcially abandoned its system of compete isolation in 1913, but the idea of imprisonment as punishment and penance continued—and even spread to countries such as Norway. So too did solitary conﬁnement. To this day, prisons and jails across the US regularly use extended isolation, sometimes for months and years, to further punish people.
After the Civil War, former slave states quickly passed laws regulating and criminalizing certain behaviors—but only for Black people. These Black Codes criminalized a wide range of activities, such as being outside after a certain hour, gathering in small groups, missing work, being perceived as a vagrant, or possessing a ﬁrearm. The states also changed the seriousness of an offense; for instance, petty thievery became a felony after large numbers of newly emancipated Black people were forced to steal in order to survive.
These codes changed the color and nature of imprisonment. In Alabama, for instance, 99 percent of prisoners were white before Emancipation. After the Civil War and the state’s adoption of the Black Codes, Black people became the majority of people in the penitentiary. In the years following the Civil War, the imprisonment rate for Black people in Mississippi and Georgia rose 300 percent.
The racial underpinnings of criminalization didn’t end in the nineteenth century. In the 1960s, as Black people challenged Jim Crow policies throughout the country and images of their protests ﬂickered across the nation’s television screens, Richard Nixon, then vice president of the United States, declared that the increase in crime “can be traced directly to the spread of the corrosive doctrine that every citizen possesses an inherent right to decide for himself which laws to obey and when to disobey them.” Violent crime did increase during the 1960s, but that wasn’t what Nixon was referring to. His fear of “mob rule” was directed at mass sit-ins and civil rights organizing. Policing and imprisonment became tools for incapacitating communities before they could organize and demand social change.
At the same time, criminologists were concluding that prisons did not signiﬁcantly deter crime and predicted that the prison system would soon fade away. In 1973, the National Advisory Commission on Criminal Justice Standards and Goals found that “the prison, the reformatory and the jail have achieved only a shocking record of failure. There is overwhelming evidence that these institutions create crime rather than prevent it.” The commission recommended that “no new institutions for adults should be built and existing institutions for juveniles should be closed.”
Lawmakers ignored that recommendation. Instead, aided by the media, they fanned the ﬂames of fear into the conﬂagration that is now mass incarceration. In the 1980s, President Ronald Reagan invoked fears of the (Black) crack addict who would rob, rape, and murder for a hit of crack. In 1982, at a time when neither the media nor the general public was concerned about drugs, Reagan launched his war on drugs. But crack cocaine, which became the campaign’s main demon, did not hit the streets until three years later. The administration, and later the media, used images and fears of “crack dealers,” “crack whores,” “crack babies,” and “crackheads” to pass harsher laws and more punitive sentences.
It wasn’t just Republicans who used these stereotypes to whip up public fears. Democratic senator Joe Biden, who became Barack Obama’s vice president, pushed for expanded funding of both police and prisons, shaping the punitive political culture of the 1980s and 1990s. He cowrote and cosponsored the 1986 and 1988 Anti-Drug Abuse Acts, which lengthened sentences for many offenses, provided funding for an escalating drug war, and created the 100-to-1 sentencing disparity in which distribution of ﬁve grams of crack cocaine mandated a ﬁve-year federal prison sentence. In contrast, distribution of ﬁve hundred grams of powder cocaine carried the same ﬁve-year sentence.
In 1996, Hillary Clinton, then First Lady, popularized the term “superpredators.” She wasn’t talking about serial killers or rapists; instead, she was referring to African American youth. “We need to take these people on, they are often connected to big drug cartels, they are not just gangs of kids anymore. They are often the kinds of kids that are called superpredators. No conscience. No empathy. We can talk about why they ended up that way, but ﬁrst, we have to bring them to heel,” she said while campaigning for her husband’s reelection in New Hampshire.
These stereotypes have had widespread and long-standing implications. According to the Innocence Project, an organization that works with people who are falsely convicted and imprisoned, 88 percent of their clients who were arrested as minors and later exonerated through DNA evidence are Black; the majority were tried as adults. Overall, 62 percent of their clients exonerated through DNA evidence are Black; 33 percent who were coerced into false confessions were eighteen years old or younger at the time of arrest.
The build-up of prisons and incarceration did not actually curb violent crime, which had already been dropping. Since 1991, violent crime has fallen 51 percent.
But neither Senator Biden nor President Clinton seemed to have gotten the memo about the decade’s declining crime rates. Biden authored the 1994 Violent Crime Control and Law Enforcement Act, which provided funding for one hundred thousand new police ofﬁcers, earmarked $9.7 billion for prisons, created sixty new death penalty offenses, and imposed lengthier prison sentences, including the “Three Strikes, You’re Out” provision for a number of federal crimes.
Upon signing it into law, Clinton stated, “Gangs and drugs have taken over our streets and undermined our schools. Every day, we read about somebody else who has literally gotten away with murder.”
Once the act became law, twenty-eight states and the District of Columbia jumped on the promise of federal money in exchange for harsher prison terms, enacting stricter sentencing laws for violent crimes.
In the twenty-ﬁrst century, however, public sentiment is changing. President Barack Obama tweeted, “Mass incarceration makes our entire country worse off, and we need to do something about it.” During his presidency, he visited a federal prison and met with people conﬁned inside; reduced sentencing disparities between crack and powder cocaine; and commuted the sentences of 1,715 people, granting them an early release from federal prison. Politicians on both sides of the political spectrum began to shift their rhetoric from “tough on crime” to “smart on crime,” acknowledging that previous approaches of locking people up for lengthy periods of time for violating the law have not worked.
At the same time, politicians have seized on—and inﬂated— public fears of terrorism to fuel the expansion of law enforcement, prosecution, and imprisonment of Muslims living within the United States. Six weeks after 9/11, Congress passed the USA Patriot Act, increasing law enforcement capability and reach. In the ensuing months, thousands of Muslim households were raided; many men were deported or detained for months without charge. By 2004 an estimated one hundred thousand Muslims in the US had experienced at least one of the security measures enabled by the Patriot Act, such as arbitrary arrest, secret and indeﬁnite detention, closed hearings, use of secret evidence, wiretapping, visits from the FBI, and mandatory special registration. However, current discussions about mass incarceration and criminal legal reform frequently exclude mention of these laws—and their widespread violation of civil and human rights under the guise of ﬁghting terrorism.
In 2019, criminal justice reform became a platform for several of the leading Democratic presidential contenders who unveiled platforms to end mass incarceration and linked the issue to other social and economic issues.Though public opinion—and some public policy—has slowly shifted, mass incarceration remains a method of racialized social control.
Even Donald Trump jumped on the bandwagon of criminal justice reform. While calling for greater policing, criminalization, and criminal penalties—as well as increased detention and deportation of immigrants—he also championed and signed into law the First Step Act, which shortened mandatory sentences for nonviolent drug convictions and changed the third sentence of a federal three-strikes law from life imprisonment to twenty-ﬁve years. (These sentencing reductions were not retroactive; thousands remain behind bars based on past—and now obsolete—sentencing guidelines.)
It’s important to understand that these changes are not occurring on their own. Public opinion is shifting because of decades of organizing that has taken many forms. Advocates, including currently and formerly incarcerated people and their loved ones, are challenging and, in some instances, overturning draconian laws. They’ve also been ﬁghting to improve jail and prison conditions. In a growing number of instances, their organizing also challenges the bedrock idea that imprisonment is the only solution to societal ills.
Though public opinion—and some public policy—has slowly shifted, mass incarceration remains a method of racialized social control, sweeping those who have been marginalized by societal inequities behind bars and walls rather than addressing these issues. As former political prisoner and renowned prison abolitionist Angela Davis wrote, “The prison has become a black hole into which the detritus of contemporary capitalism is deposited.” The focus on locking people up continually redirects society’s focus (and resources) from the need for quality education, employment, housing, comprehensive medical and mental health care, and violence prevention.
Excerpted from “Prisons Make Us Safer”: And 20 Other Myths About Mass Incarceration by Victoria Law (Beacon Press 2021). Reprinted with permission from Beacon Press.