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The Brooklyn Rail

OCT 2020

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OCT 2020 Issue
Field Notes

The Dangerous Seduction of Reform

A Review of Prison by Any Other Name

Maya Schenwar & Victoria Law
Prison by Any Other Name: The Harmful Consequences of Popular Reforms
(The New Press, 2020)

The conquest and burning of Minneapolis’s Third Precinct in response to the police murder of George Floyd was a profound act of abolition which established the political terrain on which the George Floyd Rebellion has unfolded since. The flames of Minneapolis opened a host of political possibilities, ranging from piecemeal police reform, to police and prison abolition, to protracted, open-ended insurrection. While the original incarnation of Black Lives Matter focused on blocking infrastructure, like highways and bridges—ostensibly to wake up a slumbering public to the brutal reality of American policing, and press for reforms that would make Black lives matter in the eyes of the law—this time around protestors have unleashed an often frontal attack on symbols of carceral power: police precincts, courthouses, department of correction buildings, to name a few. As these rotting avatars of social control draw increasing fire, sometimes it seems that anything is possible but a return to the status quo that they serve to prop up. 

Surely this rebellion is inseparable from the global pandemic. The COVID-19 time may well be remembered as the hours of the shortest shadow, when illusions long sustaining American life became impossible to bear. Debates about how to go “back to normal” have forced a new generation to reckon with just what that normal means, and whether it is even desirable to go back. And America’s love affair with prisons and police is perhaps the most prominent example of a “normal” quickly falling out of style. These institutions have proven not just useless in the face of COVID-19, but actively harmful. As millions of Americans faced unemployment, evictions, and preventable deaths in overcrowded hospitals and nursing homes, the police—who do nothing but spread the coronavirus through arrest and public interactions, often maskless—have continued to murder Black people in their own homes, while they shopped, or as they traveled home from work. George Floyd was murdered for allegedly passing a $20 counterfeit bill. To many Americans being told to tighten their belts—as police and prisons continue to receive virtual blank checks—this moment served as a tipping point.1

The rebellion has called attention once again to the crisis of legitimacy enveloping policing, incarceration, and other structurally racist institutions which reproduce the color line in American society. In tandem with massive and militant protests, new possibilities have opened to weaken and abolish these institutions, as part of a general offensive against a racially stratified class society in the United States. Crises such as this are surely opportunities for the Left, but it bears remembering that they are also opportunities for capital and the forces of law and order to shake off outmoded forms of exploitation and domination and embrace new ones. Thus moments when vast segments of civil society lose their self-evident legitimacy can lead to a radical reconfiguration of society, or to the strengthening of capitalist exploitation and state repression—which prove remarkably capable of radical adaptation when faced with challenges to their existence. 

Accordingly, as militant street tactics have persisted in cities across the US, calls for police and prison abolition have moved from radical slogans to the pages of official society publications. Parts of the progressive wing of the ruling class have been forced to adopt language about “defunding” police and “ending mass incarceration.” The meanings of “defunding” the police, and even “abolition,” vary widely, depending on who is speaking. In the mouths of politicians, they likely mean nothing at all—or worse, more funding to carry out newer experiments in community-police relations. A comrade from Minneapolis recently warned, “The police abolition gripping the imagination of my city is merely the same law upheld by nicer faces. Instead of police, there might be ‘community security forces,’ only more deeply integrating the population into what the police do today.”2 As long-standing movements to defund and abolish police and other tentacles of the prison-industrial complex receive their prime time debut, such doublespeak is as inevitable as it is dangerous to those seeking to realize the radical potential of the ongoing rebellion.

Thankfully, in this moment of great tumult and confusion, May Schenwar and Victoria Law have furnished us with a detailed and accessible guide to avoiding the kind of “criminal justice reforms” which speak to this widespread disaffection while actually only making things worse. Prison By Any Other Name: The Harmful Consequences of Popular Reform (The New Press, 2020) provides at once an accessible primer for those newly interested in building alternatives to policing and incarceration, and a wealth of critical insights for seasoned abolitionists seeking to tread carefully through the dizzying terrain of a world turned upside down. “Some of the things that seem to be changing,” Schenwar and Law argue, “might actually be leading us to a place that’s even worse.” 

In particular, Schenwar and Law sound the alarm about the bipartisan push to replace incarceration with ancillary forms of punishment and surveillance. “Listen closely to both conservative and liberal reformers’ plans for addressing mass incarceration,” they caution “They sound a lot like… mass incarceration.” This fact was on display at the recent Republican National Convention, when President Trump positioned himself simultaneously as the “law and order candidate” best suited to crush the George Floyd Rebellion, and also the candidate of sensible prison reform. Trump’s support for the much-anticipated (and wildly overestimated) First Step Act, and criminal justice reform in general, is perhaps the ultimate red flag that not all reform efforts are working to improve things for the communities hit hardest by mass incarceration. While Schenwar and Law’s book was written prior to COVID and the George Floyd Rebellion, its critique of prison and police reform seem even more useful today. As Michelle Alexander notes in its foreword, our collective consciousness about mass incarceration has, in a few short years, been transformed. Public support for punitive policies that legitimized mass incarceration as a political project has waned, and the once unassailable regime of “law and order” now finds a chorus of critics—and a crumbling base of political support. If the rise of so-called alternatives to incarceration (ATIs) are any indication, we have entered a phase of restructuring of mass incarceration that deserves our attention and scrutiny.3

Accordingly, Prison By Any Other Name explores how the delegitimization of mass incarceration, driven by decades of activism, has created a demand for radical change, which ATIs threaten to run aground. Drawing from Beth Richie’s conception of “prison nation,” the authors define mass incarceration not simply as an agglomeration of jails and prisons, but the sum total of “all versions of racial and social control wherever they can be found, including prisons, jails, schools, forced ‘treatment’ centers, and immigration detention centers, as well as homes and neighborhoods converted to digital prisons.” The authors emphasize that lowering the prison population is in itself no guarantee that the carceral state is shrinking; instead, the horizon of reform in the present is often “decreasing prison populations, not … releasing more people from state control altogether.” Therefore the bulk of Prison by Any Other Name explores how the logic of punishment and social control shape the terrain on which alternatives to incarceration operate.  

Drug treatment and mental health instead of prison, protections for children at risk of abuse, and community supervision for sentenced people with families and responsibilities all sound like human alternatives to incarceration. For many of the people that Schenwar and Law interview, ATIs seem on their face to be a better option than jail and “a kinder Somewhere Else,” to use a phrase they borrow from abolitionist Mariame Kaba. For people suffering from poverty, addiction, homelessness, and other issues, ATIs are also the main entry point to much needed services. For example, it is an arrest and court appearance that brings someone suffering from addiction into a drug rehabilitation program. Yet, such diversion programs are largely reserved for what are called “non-non-nons,” or first-time, non-violent, non-sexual offenders, and even those who make it into these programs often wind up with a criminal record and a fast-track to incarceration.

Take, for instance, one of the most popular technological quick-fix solutions to the problem of mass incarceration: electronic monitoring. EM is embraced as a cost-effective way to reduce jail overcrowding and it is largely reserved for non-violent offenses, thus widening the carceral net. Schenwar and Law estimate that roughly 200,000 people are on electronic monitoring in the US at present. But rather than just focusing on statistics, they open space for ordinary people’s experiences with ATIs. One of these people is Colette Payne, a Black woman incarcerated in a crowded Cook County Jail dorm for possessing heroin. After spending a week separated from her young children, Payne was offered the choice of electronic monitoring (EM), which she readily accepted. Once home, however, the Sheriff’s department made regular and invasive home visits, while the restrictions of house arrest made it impossible for her to leave the house to do simple things related to child care, or to seek treatment for her addiction. Thus, Payne’s freedom from Cook County was purchased by the extensive reach of the carceral state into her and her family’s lives. Payne found the boredom and isolation of the Cook County cell had followed her home, and with nothing to do, and nowhere to go, she relapsed and was reincarcerated. 

The threat of incarceration is always present for those that either opt to take an ATI or are mandated to one by a judge, adding further stressors and feelings of being trapped. And when coupled with regular exposure to police, courts, and the threat of incarceration, the authors argue, EM and other ATIs simply replicate the prison. Whether the person is confined at home with an electronic bracelet, a psychiatric hospital or drug treatment center that differs little from a prison, or monitored in their “community” in such a way that turns their home and neighborhood into one big prison. Instead of breaking with the logic of punishment, ATIs expand and deepen the carceral net both in space and within the fabric of people’s lives. 

Shenwar and Law emphasize how ATIs rely on the carrot and stick approach to managing largely poor and racialized populations. In order to qualify for an ATI and avoid jail time, a person has to be a first-time offender and also admit guilt, often to a lesser offense, which becomes the basis of a criminal record. Once in the program, defendants—who are often struggling to make ends meet—are monitored closely and have to follow program requirements with little to no material assistance. The process can take years to complete and includes regular fines and the ever-present risk of running afoul of the program’s strictures. One such program is Project ROSE in Phoenix, Arizona, a diversion program explored by Schenwar and Law, which putatively assists those arrested for sex work, as an alternative to jail. But its cooperation with the state is troubling to say the least. Shenwar and Law share the story of Monica Jones, a Black trans woman and social work student who was targeted for Project ROSE by an undercover cop. After being arrested and taken to a church rather than a precinct, Jones spent over a year and a half fighting the criminal charges against her stemming from a police intervention on behalf of this supposed ATI. Similarly, while drug courts and mandatory “treatment” are often presented as forms of “care” for people in need, the authors argue that the forced nature of this treatment ignores the facts that many drug users are not in need of saving. Those with serious addictions who require and desire treatment, they add, will likely not find it in a forcibly applied, one-size-fits-all curative regiment in harsh and traumatizing facilities—but require instead their own path to recovery, which might include relapse that in a punitive model of care could land someone behind bars. 

The ethos of saving people also shapes how poor mothers and children experience the carceral state. Today, women are the fastest-growing prison population, facing unique challenges inside prison walls. For instance, incarcerated mothers often give birth in the company of prison guards, not their loved ones, and see their children torn from them immediately. Tireless activism around incarcerated women’s experiences has galvanized advocacy and pushed reforms that Schenwar and Law acknowledge, but the result has been advancing programs that replace prison with other forms of confinement. Instead of prison, for example, women across the US who have children and are facing nonviolent drug charges can be held in rehabilitation facilities. In these facilities, a mother’s relationship with her children is closely surveilled and monitored, as mothers are forced to follow strict guidelines set by guards and counselors who micromanage parenthood within the disciplinary parameters of a jail setting.

The fact that such facilities are located geographically within communities from which the mothers hail does little to address the “actual issues that make parenting especially difficult for most women who end up incarcerated—namely, poverty and lack of access to resources—remains entirely unaddressed.” In exploring the severe limits of this conception of “alternatives” to incarceration, Schenwar and Law identify the carceral role of non-carceral state actors, such as social workers, in expanding the carceral net into the most intimate details of a person’s life. “Not all prisons have steel bars,” they warn, “not all police carry guns and not all punishments are called punishments.” Building on the work of scholars like Dorothy Roberts, the authors argue that simply replacing the bloated police state with more social service agencies will do little to mitigate the impact of mass incarceration, especially because of how well-integrated such service providers are in the state punishment apparatus. 

The myth of “the community,” Schenwar and Law demonstrate, is foundational to the ideological function of ATI’s. “Community,” they find, is an amorphous term used by state actors to make ATIs more palatable to the public, and to legitimize the carceral state as the main solution to long standing structural inequalities. This mystification is perhaps most evident in “community policing,” an abstraction that can mean just about anything: deputizing armed police to undertake social work functions, conducting systematic intelligence gathering by police on the beat, or basically anything that happens when cops get out of their cars. The actual practices of the “community police” are not as important as the ideological sheen the appellation gives to the saturation of working-class communities of color with cops, often in cooperation with conservative “community organizations,” and here we see the mystification of “the community” doing its work for the carceral state.

Unpacking another dangerous abstraction, the authors argue that “data-driven policing,” the likes of which accompanied NYPD’s court-ordered abandonment of stop-and-frisk, uses the faux neutrality of big data to craft slapdash and arbitrary collections of names akin to TSA’s no-fly list, which serves as the basis for violent raids, and could spell heightened sentences for anyone who winds up on the list. Culled from a hodgepodge of social media monitoring and hearsay collected on the street, these lists are completely opaque, and it is impossible for someone to find out they are on one until the state takes action against them, and then it is impossible to appeal.

Perhaps the ultimate tragedy lies in the pointlessness of it all. Much like the history of early probation chronicled so deftly by David Rothman in Conscience and Convenience (Little, Brown and Company, 1980), Schenwar and Law argue that ATIs like electronic monitoring and drug treatment courts were meant to take the place of incarceration, but have come to ensnare people who might not have been incarcerated at all, either pretrial or post-sentencing, and whose punishment very well could have been nothing. Mandatory treatment for drug charges, they argue, often takes the place not of jail but of no punishment at all, as the kind of trifling drug charges that many district attorneys are increasingly hesitant to prosecute are diverted into specialized drug courts which take them seriously. They call this “widening the drug war net.” “Drug courts,” they argue, “are capturing new populations” who might otherwise avoid the carceral net altogether. Similarly, the idea that EM is being used as an “alternative” to imprisonment is challenged by figures suggesting its use has increased alongside a similar climb in rates of incarceration. 

To illustrate this point, Schenwar and Law tell the story of Thomas Barrett, who was fined $200 for stealing a can of beer from a store and sentenced to one year of probation. Barrett struggled with addiction and could not keep up with the probation and monitoring fees, totaling $260 per month. He tried everything, including selling plasma and going without food. He was ultimately incarcerated for nonpayment. In short, the kindler, gentler alternatives to lockup are pushing people back into prison. This is the case especially when it comes to probation and parole, the most important drivers of mass incarceration. Across the United States, violations incurred while on probation and parole easily land someone back in prison. In New York, despite reforms to the state’s probation system and talks of closing down Rikers Island, hundreds of people are held in jail for parole violations.4 This is due partly to the restrictions that are placed on people that do not have anything to do with committing a criminal act, including avoiding peers, abiding by curfew, keeping a job, etc. It is a substitute for criminalization, not a system disrupting it, and it is built on the logic of punishment and so manifests in the same way. 

The most challenging critiques come in Schenwar and Law’s discussion of the treatment of convicted “sex offenders.” Through stories of people caught in the carceral net for life as sex offenders, the authors explore the seemingly endless continuum of punishment unto death that characterizes people with this legal distinction. For example, LeeAnn, a Florida mom and former sex worker struggles to find work because she has to report her “sex offender” status to all potential employers, in addition to following the strict rules of probation, which include being prohibited from using the Internet and other hindrances to basic necessities of life. Schenwar and Law argue that no evidence exists to support the idea that non-prison sanctions for sex offenders—living restrictions, child custody revocation, and countless rituals of public humiliation typified by the public registry—actually prevent sexual harm, which overwhelmingly happens within families or between people otherwise known to each other. Instead, sex offenders receive a life of punishment. It is brave of the authors to take on this issue, the thorniest and most contradictory for contemporary abolitionist organizing. But by focusing on cases of people who did not commit sexual assault, and seem instead to be hapless victims of overzealous prosecution, the authors sidestep a necessary engagement with how to handle society’s most hated transgressors without reproducing the present practices of punishment unto death.

Maya Schenwar and Victoria Law have written a sharp, wide-ranging, and accessible dissection of how so-called prison and policing reforms can bolster a carceral state whose infamy made reforms possible in the first place. Prison By Any Other Name is accordingly a necessary text for reformers and abolitionists alike, in addition to anyone trying to make sense of what should take the place of mass incarceration. The authors provide rich descriptions and snapshots of how poor Black, white, disabled, and—in particular—trans people are adversely affected by ATIs, and how the promise of help and care is framed by the logic of punishment. And they make a necessary abolitionist intervention against replacing prisons with social workers, school officials, and other state agents who only take the place of cops and guards by becoming them. As activists, Schenwar and Law invested in “that journey, that practice, that slow build” that will make prisons obsolete, and allow us to create the world we desperately need. On that journey, many abolitionists rightfully focus on important practices like “transformative justice” and “restorative justice,” which are aimed at resolving conflicts in families and communities and building community without interventions by the police and other repressive institutions. But, as they caution, this work can be easily co-opted by the carceral state, especially if it is separated from wider struggles and social movements around free education, healthcare, and housing. 

Identifying solutions which actually double down on the problem also allows us to explore more deeply the various state and non-state actors who are invested in these alternatives, and the role they play in maintaining social order. Programs like EM, the authors emphasize, can be the result of cost cutting by local elites, well-intentioned organizing against incarceration, or organizers more deliberate about maintaining the capacities of the carceral state amid reform, such as Families Against Mandatory Minimums, who advocate for shifting funding away from prisons—and into police departments. This fraught terrain is the field on which abolitionists presently operate. 

Schenwar and Law are correct to point out that moments of capitalist and social crisis produce reforms in punishment and social control. They allude to the history of reforms that gave birth to the prison in the 18th century, and to ATIs in the 19th and 20th centuries. But what does the current embrace of ATIs tell us about our own crisis today and in particular about the role of the state in punishing and disciplining large swaths of the urban and rural poor? This is an important question that future work needs to flesh out further, as it points to the structural role of punishment and social control under capitalism, and raises the question whether our present moment of reform might in fact be different from other moments of capitalist crisis. It is a question that invites us to think of the present not as an endpoint but as a moment of transition, when contending class forces are jockeying for leverage amidst an unfolding crisis which will surely engender social terrain dissimilar from that of the present. The winners and losers of this crisis will only be determined by struggle. 

And speaking of struggle, much has changed in the terrain of contesting police and prisons since Prison By Any Other Name was written. Most abolitionists identify as anti-capitalist revolutionaries, who are simply operating through “non-reformist reforms” to weaken the capitalist state in a prolonged war of position. This orientation is understandable in times of low movement activity. But what happens when tens of thousands of proletarians across the country take to the streets to directly attack—and sometimes literally abolish—carceral institutions? At what point does abolitionism, as a practice divorced from revolutionary insurrection and relegated to a “slow build” vision of social change, become its own type of radical-talking reformism? This question can only be answered by weighing abolitionist visions for social change against the militant tactics unfolding in America’s streets, and the horizons of struggle these skirmishes open up for an offensive against not just police and prisons, but the capitalist order which relies upon them for social control. As we have argued elsewhere, a serious commitment to extra-parliamentary revolutionary change is a key difference between abolitionists and Left-Keynesians seeking a more equitable capitalism.5 In any case, the good people of Minneapolis have a clear message for all who speak of abolition: Hic Rhodus, hic salta!

The George Floyd Rebellion has opened up visions for open class struggle which we often thought we’d never see in our lifetimes. Navigating the treacherous coupling of promise and pitfalls which characterize such moments of upheaval necessitates a greater understanding and analysis among abolitionists of what exactly we are up against, and what we want to take its place. Victory in the struggles ahead depends on connecting the fight against the carceral state to the fight against capitalist exploitation, toward a future worthy of the name. 

  1. We explore this concept in more detail in an analysis of the rebellion’s early dynamics: Jarrod Shanahan and Zhandarka Kurti, “Prelude to a Hot American Summer,” The Brooklyn Rail, June/July, 2020, https://brooklynrail.org/2020/07/field-notes/Prelude-to-a-Hot-American-Summer.
  2. “Warning,” The New Inquiry, September 9, 2020, https://thenewinquiry.com/blog/warning. This letter is part of a new series, featuring dispatches from the frontlines of the rebellion, edited by the journal Liaisons.
  3. We have explored the plans to replace the notorious Riker’s Island with a series of neighborhood-based jails and expansion of ATIs as an example of this moment of penal crisis and reform. See Zhandarka Kurti and Jarrod Shanahan (2018) “Rebranding Mass Incarceration: The Lippman Commission and Carceral Devolution in New York City” Social Justice 45(3).
  4. “Hundreds are still jailed for technical parole violations in NYC, which means decarceration is happening far too slowly.” Prison Policy (2020), https://www.prisonpolicy.org/blog/2020/04/24/nyc-technical.
  5. Shanahan and Kurti, “Prelude to a Hot American Summer.”

Contributors

Jarrod Shanahan

is an assistant professor of criminal justice at Governors State University.

Zhandarka Kurti

is an assistant professor of sociology at the University of Tennessee, Knoxville.

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The Brooklyn Rail

OCT 2020

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