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Distrust all in whom the impulse to punish is strong.! -FRIE.DRICH NIE.TZSCHE. Freedom is the United States’ founding creed. “Every spot of the old world is overrun with oppression,” cried Thomas Paine, but America promises “asylum for the persecuted lovers of civil and religious liberty.” Andrew Jackson later told his countrymen, “Providence has showered on this favored land blessings without number, and has chosen you as the guardians of freedom, to preserve it for the benefit of the human race.” Subsequent presidents, inwartime and peace, have renewed this sacred charge, proclaiming freedom as America’s supranational mission, its unifying cause. In his inaugural address, Barack Obama cast the tradition forward. “Let it be said by our children’s children,” he said, that “we carried forth that great gift of freedom and delivered it safely to future generations.”2 America is “the land of the free,” yet by one vital measure, it is less free than any other country on earth: it incarcerates a greater portion of its citizenry than any other, about lout of every 100 adults. With some 2.4 million persons under lock and key, the United States manages the largest penal system in the world, the grandest ever conceived by a democratic government.3 Just as slavery once stood as a glaring exception to the American promise, so does imprisonment more than two centuries after the birth of the republic. The stated purpose of the U.S. prison colossus, which now outstrips the combined populations of Boston, Washington, and San Francisco, is to keep the public safe. Yet the majority of criminologists agree that the phenomenal expansion of incarceration has only modestly reduced crime, accounting for perhaps a quarter of the crime drop since the early 1990s.4 Even as the experts increasingly doubt the utility of incarceration, however, our society has come to rely on it as never before. Imprisonment in the United States has achieved unprecedented scale. Combining law enforcement, courts, and prisons, the U.S. criminal justice syst(\m consumes $212 billion a year and employs 2.4 million people, more than Wal-Mart and McDonald’s combined, the nation’s two largest private employers. There are more than eighteen hundred separate prisons in operation across the country-not counting local jails, juvenile lockups, and immigration facilities. Concrete and concertina wire have become integral features of the American landscape. 5 Even as the use of incarceration has expanded exponentially, however, many Americans still don’t know anyone who has been to prison. In middle- and upper-income, predominantly white neighborhoods, imprisonment remains a rare and shocking experience. According to the federal Bureau of Justice Statistics, only one in thirty-nine white men has ever been to prison, with the odds plummeting in the higher income brackets. Along the margins of American society, however-in poverty-blighted rural areas and struggling urban cores-imprisonment has become commonplace. One out of every six African American men has spent time in prison, one out of every thirteen Hispanics. If one takes a snapshot of those currently incarcerated, the socioeconomic indicators read more like a fact sheet from Afghanistan than the first world. Roughly half of today’s prison inmates are functionally illiterate. Four out of five criminal defendants qualify as indigent before the courts.6 That prisons concentrate poverty and ignorance-in addition to rough and shady personalities-is nothing new. “It is well known that most of these individuals on whom the criminal law inflicts punishments, have been unfortunate before they became guilty,” noted Gustave de Beaumont and Alexis de Tocqueville in 1833. More surprising is that measurable inequities in criminal justice have widened over the past few decades, particularly across the barrier that has always divided Americans most intractably-race. A half century ago-before the Montgomery bus boycott, before the War on Poverty, and before the conservative reaction against the social experimentation of the 1960sblacks in the United States were imprisoned at roughly four times the rate of whites. Today, a generation after the triumphs of the civil rights movement, African Americans are incarcerated at seven times the rate of whites, nearly double tl1e disparity measured before desegregation.? Although two generations have passed since Brown v. Board of Education, African American men today go to prison at twice the rate they go to college. 8 Almost no one would have predicted this dire state of affairs two generations ago. Had you proposed in 1965 to increase the U.S. prison expenditures forty-four-fold and widen racial disparities over the next forty years, even the hardest hard-liners would have scoffed. Toward the end of the civil rights era, in fact, most observers believed the country was moving in the opposite direction. Although “there is a long way to go,” concluded the authors of a 1969 primer on constitutional rights, we are making “orderly progress” toward the day when “the poor man, the Negro, the suspect, and the defender of unpopular causes truly enjoy … equal protection under the law.” Conventional prisons, many experts believed, were destined for obsolescence. As counseling and community corrections came to the fore, one of the country’s leading criminologists, Norval Morris, advised criminal justice professions to begin “conscious planning” for “the decline and likely fall of the ‘prison’ as that term is now understood.”9 We now know that Professor Morris and his colleagues were not just off the mark but off the map. But why? What, indeed, propelled a resurgence of the prison precisely at the moment of its predicted demise? When I began researching criminal justice in the 1990s, analysts of all stripes were struggling with this question. Law-and-order conservatives had the simplest answers. They argued that cultural hedonism and welfare dependency had gradually eroded family values, unleashing a frightful crime wave in the 1960s that was finally brought under control only by decisive government action.l° Critics of the crackdown, by contrast, have floated a raft of alternate explanations, from mediadriven panic to a reduced tolerance for risk in late modernity.ll Some have suggested that America’s titanic penal system has reached the point of self-sustaining profitability, that a “prison-industrial complex” has emerged as a rival to the military-industrial complex first assailed by President DWight Eisenhower in 1961,12 In graduate school at Yale, I learned a great deal from this groWing body of literature, but I felt increasingly dissatisfied. Many commentators agreed that race plays an important role in the justice system, but relatively few were making the entwined histories of criminal punishment and racial subjugation a central category of analysis.13 Fewer still carried the story further back than Barry Goldwater’s 1964 presidential campaign, one of the first to make law and order a polarizing partisan issue.14Almost no one was grappling seriously with the role of the American South, despite the region’s leadership in extending sentences, building new prisons, and resurrecting bygone punishments like chain gangs and striped uniforms. IS I suspected that vital insights lay buried in these neglected areas, so I focused my research on the history of crime and punishment in the South. I traveled to Florida, where venerable traditions like electrocution survived into the twenty-first century, then to Georgia, where I studied the rise and fall of the chain gang. In my mother’s home state of Mississippi, I surveyed the legendary penal farm at Parchman. Next door in Louisiana, I conducted a round of interviews with inmates and guards at the Angola prison plantation. The more I read and the more people I spoke with, however, the more I realized that in the realm of punishment, all roads lead to Texas. Why Texas? Because just as New York dominates finance and California the film industry, Texas reigns supreme in the punishment business. With 173,000 inmates and more than twice as many paid employees as Google, Texas’s prison system is the largest in the United States, outstripping even California, which has an overall population SOpercent larger.l6 By almost any measure, Texas stands out. The state’s per capita imprisonment rate (691 per 100,000 residents) is second only to Louisiana’s and three times higher than the Islamic Republic of Iran’sF Although Texas ranks fiftieth among states in the amount of money it spends on indigent criminal defense, it ranks first in prison growth, first in for-profit imprisonment, first in supermax lockdown, first in total number of adults under criminal justice supervision, and a resounding first in executions. When it comes to imprisonment, writes Joseph Hallinan, a reporter for the Wall Street Journal, Texas is “where it’s happening.”18 Texas casts a long shadow in politics as well. Since World War II, the state has produced more presidents than any other, with the differences among them providing a measure of the nation’s postwar journey. Born in Denison, Eisenhower embodied the cold war consensus. In the 1960s, Lyndon Johnson championed civil rights, social democracy, and preventative criminal justice, even as he shipwrecked his Great Society in Vietnam. LBJ’stwo Texas successors then led the country rightward: George H. W. Bush, who rode the specter of Willie Horton, a black rapist, to the White House and widened the war on drugs when he got there, and his son George W. Bush, who funneled more money into law enforcement and incarceration, both foreign and domestic, than any chief executive before him. By the early twenty-first century, Texas had come to exercise unrivaled leadership in the political arena, especially in criminal justice, where it pioneered all manner of punitive policies, from lethal injection to prison privatization. With political conservatism ascendant, Texas became the country’s new bellwether state,19 To a large extent, Texas stands for the country as a whole. With its mythic history, multiracial population, and immense territory that stretches from the South to the Southwest, Texas, brings together vital threads of the American fabric. Its hardscrabble folk and wide-open spaces symbolize individual liberty. Yet this freedom has always traveled with a wrathful twin. Torn by social divisions and wracked by violent conflict-dramatized by the lynching of James Bird in 1998-Texas also signifies for many Americans intolerance, bigotry, and sangUinary justice.2o In the film Thelma and Louise, when Susan Sarandon makes Geena Davis drive hundreds of miles out of the way to avoid the state, audiences are meant to understand that Texas is no place for free spirits on the run. For both its punitive singularity and historical contradictions, Texas is a fruitful site to study criminal justice over the longue duree, from one period of pervasive unfreedom to another, from the age of slavery to the age of incarceration. From its inception, the state has served as a contentious testing ground for rival styles of penal discipline: corporal punishment versus Christian charity, exploitative field labor versus penitentiary-based confinement, retribution versus rehabilitation. A populist strain in Texas politics has inspired the most spirited penal reform movements in the South, from agrarian radicals who railed against forced labor to civil rights activists who assailed prison segregation. But an even stronger tradition of racial demagoguery and pennypinching conservatism, combined with the intransigence of the state’s prison guard establishment, has managed to beat back each of these challenges. In Texas justice, as in politics, left has always battled right, but the right has usually won. “It was one of the cliches … that we were dragging our state, kicking and screaming, into the twentieth century,” recalls Ronnie Dugger, the founding editor of the Texas Observer, the state’s liberal standard-bearer. “But 10 and behold … Texas has dragged the United States back into the nineteenth.”2! The product pf this mismatched historical struggle is a uniquely harsh model of criminal justice, a regime of state-sanctioned punishment based on roughshod legal proceedings, racial subjugation, corporal punishment, and unpaid field labor that has persevered into the twenty-first century. Texas’s plantations are “probably the best example of slavery remaining in the country,” reported a national corrections expert in 1978.22 Twenty years later, when I first started visiting southern prisons, I reached the same conclusion. Nowhere else in turn-ofthe-millennium America could one witness gangs of African American men filling cotton sacks under the watchful eyes of armed whites on horseback. Plantation prisons at Sugar Land, Huntsville, and elsewhere have preserved the lifeways of slavery in carceral amber. For most of American history, Texas’s implacable punishment traditions relegated it to the margins of penology, a field devoted-in theory if not practice-to the “moral regeneration … of criminals.” In the late civil rights era, however, as rehabilitation programs faltered, crime rates soared, and a new breed of politician discovered that crime, especially black crime, galvanized white voters, Texas’s Lone Star became a gUiding light. State after state began copying elements of what prison experts called the “Texas control model,” while politicians looked with new fondness on the state’s severe sentencing statutes. Once dismissed as a “disgrace of Christian civilization,” Texas became the template for a more fearful and vengeful society. 23 Nationwide, tough new crime policies-far more than rising crime rates-fueled prodigious prison growth. Between 1965 and 2000, the U.S. prison population swelled by 600 percent, in Texas by 1,200 percent. Over the same period, sentences grew longer and early releases rarer. Prison education and counseling programs Withered, while supermaxes and death rows sprang up from coast to coast. “We were building prisons so fast we couldn’t find wardens to run them,” a criminal justice professor at Sam Houston State University told me. “It was like mobilizing for world war.”24 By the end of the century, the United States had embarked on an unprecedented experiment in mass incarceration, one that not only is changing the country’s approach to crime and punishment but is reworking the fabric of American society. This book tells the story of this punitive revolution with Texas at its epicenter. Examining the interplay of race, crime, and politics over almost two centuries, it explains how a proud frontier republic forged in democratic revolt came to build one of the roughest penal regimes in American history. It shows how a uniquely calloused, racialized, and profit-driven style of punishment that developed on slavery’s frontier became a model for the nation in the post-civil rights era. By analyzing the life and times of America’s harshest, largest penal system, Texas Tough proposes fresh ways of thinking about imprisonment and SOciety. First it argues that the history of punishment in the United States is more of a southern story than has generally been realized. By the numbers, the South has long been the dominant player in criminal justice.25 Open almost any book on the subject, however, and the states of the former Confederacy ar~ scarcely mentioned-except perhaps to underline their particularity.26 In the historiography of imprisonment scholars have hued to a remarkably unitary story line, with the first northeastern penitentiaries-foreboding public institutions that were meant to restore wayward citizens to virtue through penitent solitude-imperfectly evolving into modern correctional bureaucracies, complete with psychological counseling and parole. Although historians vary Widely in their approaches and viewpoints, they have overwhelmingly replicated narratives of halting progress in pursuit of the rehabilitative idealY Until recently, this progressive, regionally restrictive version of history possessed a certain logic. Because prison managers, whatever their shortcomings, steadfastly claimed reformation as their goal, and because most rehabilitative innovations originated in the North, it seemed only logical for historians to thus focus their efforts.28 Alas, now that the country’s prison establishment has largely abandoned the cause of “moral regeneration,” it is easier for us to detect southern roots. Over the last few decades, prisons have not become more humane, less racially divisive, less authoritarian, or even more supple in their exercise of power, as the dominant literature had led us to expect. Rather, American lockups have o become harsher, more regimented, more racially divisive, and markedly less rehabilitative. They no longer aim to repair and redeem but to warehouse, avenge, and permanently differentiate convicted criminals from law-abiding citizens. Today’s prisons operate less in the tradition of what the founding penologist Enoch Wines called “the reformatory idea” than in a retributive mode that has long been practiced and promoted in the South. 29 To piece together a more complete genealogy of the modern prison, therefore, this book redirects the spotlight from the North, the birthplace of rehabilitative penology, to the South, the fountainhead of subjugationist discipline, In addition to tracing the evolution of social welfare and the gospel of redemption, it examines the development of labor control, racial division, and corporal debasement. The result is that two ancestrallines come into view: one reformatory, one retributive; one integrative, one exclusionary; one conceived in northern churches and the other on southern work farms. Over the course of American history, these rival traditions have contended for influence, and in the closing decades of the twentieth century, exclusion and revenge gained the upper hand. In short, this book posits that most historians have studied only half of the family tree. American prisons trace their lineage not only back to Pennsylvania penitentiaries but to Texas slave plantations. This historical reorientation leads to the book’s second principal argument: the evolution of the prison has had surprisingly little to do with crime and a great deal to do with America’s troubled history of racial conflict and social stratification. Decoupling punishment from crime defies conventional wisdomj most citizens like to think that prisons keep predatory villains off the streets-and to a certain extent they do. Yet an examination of the historical record, as well as present-day statistics, reveals that state punishment has consistently served purposes beyond crime control. Indeed, the strong arm of the law has been regularly deployed not only to protect public safety but to preserve privilege, bolster political fortunes, and, most of all, to discipline those on the social margins, especially African Americans. The notion that the law serves the powerful is probably as old as the law itself. A character in Plato’s Republic asserted, “In every case the laws are made by the ruling party in its own interest.”3o Yet in the United States, where the highest court bears the inscription “Equaljustice Under Law,” this basic critique is too often ignored. We tend to see justice even where dominion resides. The history of Texas brings dominion into sharp focus. Although ~he Lone Star Republic was founded on the lofty principles of liberty and I~dependence, its 1836 constitution codified an inviolable hierarchy of nghts, barring all “Africans, the descendants of Africans, and Indians” from citizenship.31 After abolition, these rigid distinctions blurred but a two-tiered legal framework persisted. During the protracted epo~h of formal segregation, a variety of de jure and de facto contro…
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