Invisible Punishment: The Collateral Consequences of Mass Imprisonment

Table of Contents

Title Page

Dedication

Acknowledgments

Introduction

PART I - Beyond Doing Time: The Lifetime Consequences of Imprisonment

Chapter 1 - Invisible Punishment: An Instrument of Social Exclusion

I. BRINGING INVISIBLE PUNISHMENT INTO VIEW

II. THE CONTEXT AND CONSEQUENCES OF INVISIBLE PUNISHMENT

III. THE NEW STRAIN OF INVISIBLE PUNISHMENT

IV. ASSESSING THE IMPLEMENTATION AND IMPACT OF INVISIBLE PUNISHMENT

V. THE PARADOX OF PUBLIC SUPPORT FOR PUNISHMENT

VI. THE SHIFTING CONTEXT OF PUNISHMENT POLICY

VII. LIMITING THE REACH OF INVISIBLE PUNISHMENT: SOME MODEST SUGGESTIONS

Chapter 2 - Welfare and Housing—Denial of Benefits to Drug Offenders

A PORTRAIT OF DRUG FELONY OFFENDERS

WELFARE AND FOOD STAMP ELIGIBILITY FOR INDIVIDUALS WITH DRUG FELONY CONVICTIONS

THE BAN’S EFFECTS

PUBLIC HOUSING ELIGIBILITY FOR INDIVIDUALS WITH DRUG AND CRIMINAL HISTORIES

ADMISSION TO PUBLIC HOUSING

BASES FOR EVICTION

LOCAL IMPLEMENTATION

THE HOUSING LAWS’ EFFECTS

CONCLUSION

Chapter 3 - Mass Imprisonment and the Disappearing Voters

PART II - Distorting Justice

Chapter 4 - Incarceration and the Imbalance of Power

INCREASED PROSECUTORIAL POWER

MINIMIZATION OF THE DEFENSE FUNCTION

THE DECLINE OF JUDICIAL DISCRETION

Chapter 5 - Imprisoning Women: The Unintended Victims of Mass Imprisonment

TRENDS IN WOMEN’S IMPRISONMENT IN THE UNITED STATES

BUILDING CELLS: INVENTING WOMEN’S CORRECTIONS

COLLATERAL DAMAGE: ADULT FEMALE OFFENDERS AND THE U.S. IMPRISONMENT MANIA

WOMEN’S LIVES AND WOMEN’S CRIME

WAR ON DRUGS AS A WAR ON WOMEN

POLICIES THAT INCREASE WOMEN’S IMPRISONMENT

EMERGENCE OF VENGEFUL EQUITY

CONCLUSION

Chapter 6 - Entrepreneurial Corrections: Incarceration As a Business Opportunity

EARLY DEVELOPMENT: THE PRIVATE PRISON BOOM

THE INDUSTRY MATURES: TROUBLES MULTIPLY

CROSS-FERTILIZATION: ENTREPRENEURIAL CORRECTIONS

CONCLUSION

PART III - Fractured Families

Chapter 7 - Families and Incarceration

INTRODUCTION

I. COSTS OF INCARCERATION

II. INCARCERATION AND FAMILY ORGANIZATION

III. SOCIAL SILENCE

I V . CONCLUSION

Chapter 8 - The Social Impact of Mass Incarceration on Women

INTRODUCTION

INCREASING NUMBER OF WOMEN DETAINED BY THE CRIMINAL JUSTICE SYSTEM

WOMEN PRISONERS AS PARENTS

THE VICTIMIZATION OF WOMEN

WOMEN AS FAMILY MEMBERS AND COMMUNITY CAREGIVERS

WOMEN AS ANTIPRISON ACTIVISTS

CONCLUSION

Chapter 9 - Children, Cops, and Citizenship: Why Conservatives Should Oppose ...

PART IV - Communities in Crisis

Chapter 10 - Black Economic Progress in the Era of Mass Imprisonment

INEQUALITY IN INCARCERATION

INCARCERATION AND INVISIBLE INEQUALITY

DOES INCARCERATION INCREASE BLACK-WHITE INEQUALITY?

IMPLICATIONS AND CONCLUSIONS

Chapter 11 - The Problem with Addition by Subtraction: The Prison-Crime ...

COERCIVE MOBILITY AND CRIME CONTROL

CONCENTRATION OF INCARCERATION

BUILDING BLOCKS OF PUBLIC SAFETY

A COMMENT ON THE COUNTERFACTUAL

PART V - Incarceration As Socially Corrosive

Chapter 12 - Building a Prison Economy in Rural America

A RURAL GROWTH INDUSTRY

PRISONS AS ECONOMIC DEVELOPMENT: BOOM OR BUST?

NORMAN ROCKWELL MEETS QUENTIN TARANTINO

PERPETUATING RACISM

REDISTRIBUTING WEALTH AND POLITICAL POWER

CONCLUSION

Chapter 13 - The Impact of Mass Incarceration on Immigration Policy

THE HARSH IMPACT OF 1996 IMMIGRATION LEGISLATION

DRUG POLICY, IMMIGRATION, AND INCARCERATION

THE INTERSECTION OF WELFARE REFORM AND IMMIGRATION POLICIES

RACIAL DISCRIMINATION AND IMMIGRATION DETENTION

THE IMPACT OF SEPTEMBER 11, 2001, ON IMMIGRATION POLICY

CONCLUSION

Chapter 14 - The House of the Dead: Tuberculosis and Incarceration

TUBERCULOSIS AS PUNISHMENT

DRUG RESISTANCE, CHEMOTHERAPY, AND AMPLIFICATION

THE TUBERCULOSIS-PRISON NEXUS: THE UNITED STATES AND RUSSIA

WHAT SHOULD BE DONE?

EPIDEMIC TUBERCULOSIS AND PENAL POLICY

Chapter 15 - Media on Prisons: Censorship and Stereotypes

Chapter 16 - The International Impact of U. S. Policies

THE VIEW FROM EUROPE

THE AMERICAS

THE FORMER SOVIET UNION

THE END OF REHABILITATION?

THE EXTENT OF PRIVATIZATION

THE CASE OF THE UNITED KINGDOM

THE UNITED STATES IS UNIQUE

THE U.S. IMPACT

CONCLUSION

Notes

About the Authors

Index

Copyright Page

To my mother, Mildred Mauer, and the memory of my father, Joseph Mauer

—Marc Mauer

To Margaret and Mae, my sisters both in spirit and reality

—Meda Chesney-Lind

Acknowledgments

Diane Wachtell, our editor at The New Press, approached us with an idea for a book exploring the broad-ranging consequences of America’s commitment to imprisonment. No doubt she was reading our minds, since these have been issues of great interest to us in recent years. The project also provided a welcome opportunity for two old friends to collaborate in a way that was both personally and professionally rewarding. Throughout the process, Diane’s insightful editing and enthusiasm kept us intellectually sharp and focused. Thanks also to Beth Slovic, Janey Tannenbaum, and others at The New Press for their support and efficiency in the many layers of production and promotion of the book.

Our sincere gratitude goes to all the contributors to the book, each of whom prepared a challenging text and made the editorial process a collegial one in the best sense of the word. Their collective voices are the strength of this volume.

Our respective institutions provided the logistical support necessary for an efficient working environment. Staff of The Sentencing Project aided in the many day-to-day editing and coordinating tasks required to pull together a project of this scope. Thanks in particular to the funders who have supported the organization’s work, most notably the Ford Foundation, the John D. and Catherine T. MacArthur Foundation, and the Open Society Institute. Meda wishes to thank her many supportive colleagues at the University of Hawaii, including Konia Freitas, Katherine Irwin, David Johnson, Nancy Marker, David Mayeda, Scott Okamoto, and Vickie Paramore. Meda also thanks her network of academics, policy activists, and practitioners for encouraging a focus on women in prison and the importance of thinking and writing about decarceration as a national priority. Here thanks to Barbara Bloom, Karlene Faith, Russ Immarigeon, Ann McDermott, Andie Moss, Barbara Owen, Joy Pollock, Nicole Hahn Rafter, Paula Schaefer, Vinnie Schiraldi, and Mary Scully Whitaker. Finally, many thanks to the current and former prisoners who have talked to us throughout the years and convinced us of the need for a more humane policy toward those we now imprison.

Helping to provide a healthy balance between work and home on the east coast were Barbara Francisco and Joanna and Daniel Mauer, whose inquisitive spirits and senses of humor always provide just the right environment to keep moving along. And in the Pacific, thanks to Ian Lind for his unfailing support over the years.

Introduction

Marc Mauer and Meda Chesney-Lind

Another year goes by in the courtrooms of America. A million defendants are convicted of felony crimes, and 450,000 of them are sentenced to prison. Few of their names or stories are known to us unless we happen to have a personal connection to them. Yet the results of the routine workings of an increasingly massive and punitive criminal justice system have consequences not only for these individuals whose lives are directly touched, but for an extended group of parents, spouses, children, friends, and communities who have committed no crimes but must suffer the largely invisible punishments that are the result of our current approach to criminal justice.

By relying on incarceration as the predominant mode of crime control for the past thirty years, the United States has developed a social policy that can be described only as mass imprisonment. With 2 million Americans behind bars in the nation’s prisons and jails, the impact of these policies on American society is more profound than at any previous point in history.

Social scientists have long recognized that all social policies have what might be termed intended and unintended, or collateral, consequences, and that sorting these out can be complex and a matter of political interpretation. This book provides the first comprehensive examination of what Jeremy Travis has aptly termed invisible punishments to describe the effects of policies that have transformed family and community dynamics, exacerbated racial divisions, and posed fundamental questions of citizenship in democratic society. Imprisonment was once primarily a matter of concern for the individual prisoner, but the scale of incarceration today is such that its impact is far broader—first, on the growing number of family members affected financially and emotionally by the imprisonment of a loved one; beyond that, by the way incarceration is now experienced by entire communities in the form of broad-scale economic hardships, increased risk of fatal disease, and marked economic and social risk for the most vulnerable children. And ultimately, a society in which mass imprisonment has become the norm is one in which questions of justice, fairness, and access to resources are being altered in ways hitherto unknown. This collection represents an attempt to frame these issues and explore their wide-ranging impacts on American society.

Nowhere are these effects more highlighted than in the African-American community, where the experience of imprisonment has become almost commonplace among men and increasingly for women as well. More than three-quarters of a million black men are now behind bars, and nearly 2 million are under some form of correctional supervision, including probation and parole. For black males ages twenty-five to thirty-four, at a time in life when they would otherwise be starting families and careers, one of every eight is in prison or jail on any given day. As detailed by Donald Braman and Bruce Western and colleagues, behind these figures lies an experience of profound stress on family relationships, employment prospects, and child-rearing.

The collective portrait of prisoners is very telling. Three-quarters have a history of drug or alcohol abuse, one-sixth a history of mental illness, and more than half the women inmates a history of sexual or physical abuse. Most prisoners are from poor or working-class communities, and two-thirds are racial and ethnic minorities.

For the inmate and his or her family, a variety of collateral consequences are set in motion when he or she is sent off to prison. These begin with the logistical challenges of trying to maintain an intact family in the face of what are often severe economic and emotional hardships. The first obstacle families face is created by the fact that, as Tracy Huling describes, in most states prison policy results in a prisoner population that is primarily urban being housed in rural prisons. In New York State, for example, two thirds of prison inmates are from New York City and are largely housed in upstate rural prisons, many of them hundreds of miles from home.

How does a family of limited means—and most prison families are very much in this category—cope with this distance? For a start, telephone contact is limited. Inmates typically have restrictions placed on their access to telephones, and even when they don’t, the ease of communication is often illusory. Prison telephone service remains one of the last bastions of officially sanctioned price gouging. Prisoners are required to place calls collect, allegedly for security reasons, and sweetheart profit deals between phone companies and corrections systems lead to what would be a thirty-five-cent call in the free world becoming a four-dollar collect call to home.

But even at reasonable rates, the limitations of phone contact are but one of many reasons why few marriages survive a long-term prison sentence. Visiting a family member in prison is a significant challenge. First, a low-income city family needs the time and money to make the journey—a reliable car, perhaps an overnight stay in a motel or someone to take care of small children. The visit itself is likely to involve waiting an hour or more in a dingy reception area while the prisoner is tracked down and given a chance to shower. Family members then pass through a metal detector, possibly are searched for drugs, and finally meet their loved one in a crowded visiting room; or, if prison officials deem it necessary, see them only through a Plexiglas window while talking on a telephone. But even when reunited, families can never really leave the reality of the prison. The rules and regulations that define the bureaucracy of the prison even govern when and for how long a husband and a wife may embrace each other.

Communities of color have experienced these family strains for some time, but these problems are magnified by the rapidly rising imprisonment of women. As detailed by Meda Chesney-Lind and Beth Richie, the rate of growth for women in prison has been nearly double that for men over the past two decades, and has been accompanied by profound racial disparities. And for women, the impact of drug policies has been even more dramatic than for men, with one-third of the women in prison currently serving a drug sentence.

These trends mean that we have now entered an era in which substantial proportions of children in minority communities are growing up with a parent behind bars. Two-thirds of the women in prison have one or more minor children. Many women in prison are custodial parents; those who are lucky will have a friend or relative who is able to take on the care of the children while the mother is imprisoned. Those who are not so fortunate will see their children placed in foster care. And as a result of recent legislation (1997) mandating that parental rights can be terminated for children in the care of the state for fifteen months, it will be increasingly likely that the children will be placed for adoption.

For African-American children overall, the family experience of imprisonment is now almost commonplace, with one out of every fourteen having a parent in prison. This represents the experience on a given day; over the course of a year or the duration of childhood the proportion would be far greater. And given the difficulties described above in visiting prisons, more than half of children with a parent in prison have never even visited their parent since his or her incarceration.

Although we can quantify this experience to some degree, what is difficult to measure is the daily impact on children growing up in a neighborhood where prison seems to be almost an inevitable aspect of the maturation process, as Donald Braman describes in his essay. Since current rates of imprisonment dwarf any in the history of democratic nations, we can only speculate about the future impact. But it is not difficult to imagine that neighborhoods beset by social ills are not well served when boys and girls perceive that going to prison may be a more likely prospect than going to college.

Mass imprisonment has had a particularly insidious impact on communities of color due to the curious intersection of criminal justice and political policy making. Most prominent among these is the political disenfranchisement described by Marc Mauer of an estimated 1.4 million African-American males, or 13 percent of the adult African-American population, as a result of felony disenfranchisement laws that strip current or former felons of voting rights. These policies, varying greatly by state, arose originally in the context of the founding of the nation as only white male property holders were given the franchise. In the post-Reconstruction era in the old Confederacy, these laws were often tailored to target specifically the newly enfranchised black voters. In the modern world, the combined impact of these laws and record rates of incarceration produces a stunning political effect. As implemented in the state of Florida, this policy may well have decided the 2000 U.S. presidential election, with several hundred thousand ex-felons, disproportionately African-American, barred from the ballot box.

Other invisible punishments have increasingly shaped the landscape of the criminal justice system as well. Consider, for example, the collateral consequences imposed on a first-time offender who pleads guilty to felony possession of marijuana. Policy changes of the past two decades now bring a host of such consequences, as described by a task force of the American Bar Association, on the day of sentencing:

[The] offender may be sentenced to a term of probation, community service, and court costs. Unbeknownst to this offender, and perhaps to any other actor in the sentencing process, as a result of his conviction he may be ineligible for many federally-funded health and welfare benefits, food stamps, public housing, and federal educational assistance. His driver’s license may be automatically suspended, and he may no longer qualify for certain employment and professional licenses. If he is convicted of another crime he may be subject to imprisonment as a repeat offender. He will not be permitted to enlist in the military, or possess a firearm, or obtain a federal security clearance. If a citizen, he may lose the right to vote; if not, he becomes immediately deportable.¹

Looking broadly at the political landscape, the get tough movement of the past thirty years has altered our perceptions in ways so profound that one scholar terms it governing through crime. ² Where once crime was primarily perceived as a local issue, today there are few election campaigns at any level of office that do not incorporate the crime issue as a staple of their platforms. Increasingly, too, it is understood that crime has become a code word for race in American political life, and therefore tough talk on crime is a proxy for criminal justice policies that disproportionately control and police African-American communities.

There is nothing inherently wrong with addressing crime as an issue in public policy debate—our violent crime rate is, after all, far out of line with comparable nations. In its practical application in the era of mass imprisonment, though, the nature of this discussion often has increasingly little to do with actually examining the problem and its solutions. We see, for example, the undue influence exerted by rural legislative leaders in convincing state policy makers to expand prison systems by locating them in economically troubled rural communities. In New York State, forty of the forty-one new prisons built since 1983 have been located in rural upstate communities.³ And, as Judith A. Greene demonstrates, the advent of private prison companies aggressively marketing their wares in the past decade has resulted in questions of liberty and justice now being framed in the context of returns to stockholders.

Much of this expansion is a result of the vigorous campaigning engaged in by leaders of the drug war since the early 1980s. Had this effort been conceptualized as a penal institution construction project, one could judge it a sterling success, with the number of Americans serving time or awaiting trial for a drug offense rising tenfold from 40,000 in 1980 to nearly half a million today. One would be hard-pressed to demonstrate that the goal of the policy has been to stem drug abuse among all Americans rather than to wage a war on communities of color, with nearly 80 percent of inmates in state prison for drug offenses being African American or Latino.

The drug war’s influence on political decision making and conceptions of civil liberties has been profound as well, as legislators have increasingly adopted ever more punitive measures against those who have been convicted of a drug offense. As Gwen Rubinstein and Debbie Mukamal point out in this book, this has led to the bizarre situation whereby a convicted armed robber or a rapist can apply for higher education or welfare benefits, but a drug offender cannot. And through the guise of asset forfeiture legislation, the presumption of innocence has been ignored as local and federal law enforcement agencies are empowered to seize the property of suspected drug dealers and deposit it in police coffers, even if the suspect is not convicted.

The hardening of public attitudes and public policy in recent years has inadvertently affected our national approach to meeting the needs of victims as well. While ostensibly formulated to control crime and, by implication, to protect potential victims, the offender-centered nature of national policy in fact distracts our attention from the needs of victims. Rather than asking the policy question of how to heal the impact of crime and prevent future crime, we instead become focused on how much we can punish the offender. This translates to trying kids as adults, imposing ever-harsher mandatory minimum and three-strikes sentences, and imposing the death penalty to a degree hitherto unknown in democratic societies.

Given this orientation, the advances made in the cause of victims’ services have been truly impressive. Where once victims received little consideration, virtually every state and county now has some combination of restitution programs, counseling services, and other aids to deal with the emotional and financial trauma of victimization. Yet the political dynamic that has been established is one whereby the interests of victims are pitted against the interests of offenders.

The tragedy of this polarization lies in the fact that there is no inherent reason why the two groups need to be seen in opposition. Victims clearly have a set of needs arising from the crime that has been committed against them, but offenders have legitimate needs as well—a fair trial, punishment that fits the crime, and interventions to reduce their future likelihood of reoffending. A tough on crime orientation has little room for acknowledging that both parties may have legitimate, albeit distinct, needs and rights. Indeed, if crime victims appear at all on this harsh political landscape, it is often only to plead for the harshest possible penalty for the offender. Victims who seek other ways to heal are frequently marginalized or ignored by a system that purports to dispense justice and heal the wounds of crime.

We would be remiss not to acknowledge that prisons provide some benefits to individuals and society. In some instances, imprisonment may actually bring comfort to the families of offenders themselves. The mother who has done all she can yet is helpless to prevent her son from selling drugs and carrying a gun, may feel that prison provides some temporary relief for the family. And there are some offenders whose life on the streets is so perilous that a prison sentence may bring a respite, even given the high level of violence within prisons themselves.

Prisons also incapacitate certain offenders who would otherwise be committing serious crimes in the community. In extreme cases—the Charles Mansons or the Unabombers of the world—the very real threat of violence is sufficient in itself to justify the isolation of prison.

Incarceration may have some impact on less extreme cases as well. Scholars have attempted to examine the prison-crime relationship over many years, and it is fair to say that the evidence is not conclusive. Among the most recent spate of studies are some that have estimated the impact of the 1990s prison buildup on the declining crime rate. Two scholars using different research methodologies estimated that about one-fourth of the decline in violent crime and homicide could be attributed to rising incarceration.⁴

But is this good news or bad news? Although a 25 percent reduction in crime is quite welcome, it still leaves unexplained three-quarters of the crime drop, not to mention inconsistent results in the late 1980s, when crime rates rose despite a sustained increase in the use of imprisonment. Further, one of these study’s authors concludes that a variety of other factors contributed to reducing crime and states that "violent crime would have dropped a lot, anyway. Most of the responsibility for the crime drop rests with improvements in the economy, changes in the age structure, or other social factors. Whether the key to further reductions lies in further prison expansions, or (more likely) in further improvements in these other factors remains an open question."⁵

Although the prison-crime relationship is subject to debate, one factor that is not is the near consensus among all serious scholars that fluctuations in crime rates are subject to a host of complex factors. These include individual personality, family dynamics, employment and educational prospects, substance abuse, and, yes, imprisonment.

There is a further complication to the prison-crime analysis as well, one that suggests that the declines of recent years may be more illusory than seems apparent at first. Criminologist Elliott Currie suggests that measuring changes in the crime rate only tells us part of what we need to know. What it fails to do is to calculate what might be termed the criminality rate, that is, the extent to which we produce criminals.⁶ The reason for this is that the 2 million Americans behind bars are taken out of the crime equation since they by definition cannot commit crimes (at least outside of prison). Currie likens this to assessing the degree of illness in a society without taking into account sick people in hospitals. Would we say that we’ve conquered an illness by hospitalizing all people identified with that illness? Of course not, but this is essentially our method of computation for crime. Thus, if one wanted to calculate the total number of identified offenders in a given year, it would be necessary also to include the 2 million persons behind bars⁷ to determine the pool of potential lawbreakers.

Examining the collateral consequences of mass incarceration opens up the question of whether these are intended or unintended consequences. One can make a compelling argument for either claim. There have clearly been moments in history when the stated goal of public policy was to imprison a group of people for the purpose of restricting their liberty and freedom of speech. We can recall the internment of Japanese Americans during World War II and the jailing of civil rights protestors in the South. Ongoing and intended consequences of criminal justice policies have included felon voting disenfranchisement statutes adopted in certain Southern states, whereby legislators designated crimes supposedly committed most commonly by blacks to result in the loss of voting rights, but not those offenses believed to be committed primarily by white offenders. These blatantly racist policies have since been changed, but the combined impact of high rates of criminal justice control along with race neutral disenfranchisement policies produces rates of exclusion that are eerily similar to the days of the poll tax in some areas.

For other consequences of large-scale incarceration it would be difficult to infer specific intent on the part of policy makers to disempower certain groups or communities, even if that is the actual effect. Consider the transfer of political and financial influence occasioned by the census practice of counting prisoners in the county where they are housed and not their home communities. With a swelling inmate population comprised largely of urban minorities, this has set in motion a significant transfer of resources from urban to rural areas, even though it is unlikely that this was the intent of census officials, who originally established this policy at a time when there were far fewer inmates and the impact of such a policy would have been much more limited.

Examining the individual consequences and attempting to determine their political origins represent only one aspect of an examination of intentionality. Whether or not one believes that these consequences are intended by policy makers, a broader issue concerns the limited vision behind crime control policies and the failure to assess the consequences of these policies, virtually all of which easily could have been foreseen.

In the 1960s, concern with rising crime became identified as an urban problem and inescapably a black one in the public mind. Rather than building upon the war on poverty that had been inaugurated, however limited in scope, the seeds of the get tough movement were planted instead. Indeed, the earliest advocates of this movement, Barry Goldwater and Richard Nixon, explicitly linked the crime issue to the issue of civil rights. Some contend, in fact, that the Republican Party has been pursuing a Southern strategy for wresting electoral control of Southern states previously represented by Democrats by appealing to voters’ fears of social unrest and violent crime—with a major chord being white fear of black street crime.⁸ If anything, one can say that the political architects of this strategy underestimated its national (not just Southern) appeal.

Crime, and particularly drug-related crime, was a centerpiece of the presidency of an extremely popular Republican president, Ronald Reagan. His successor, George H. W. Bush, arguably owed his election to his tough on crime position and the racist deployment of the Willie Horton case against his opponent, then–Massachusetts governor Michael Dukakis. The war on drugs launched during these Republican presidencies, and supported in large part by Democrats in Congress and the subsequent Clinton administration, had as its chief hallmark a stepped-up federal role in law enforcement and harsh sentencing policies. As long as the image of a drug abuser was that of a young black man, the arrest and sentencing policies that would be developed would target young crack users and sellers in defined communities, inevitably creating vast racial disparities in the system and distracting public attention away from approaches that emphasized prevention and treatment. And increasingly, as more low-income women became caught up in cycles of poverty, addiction, and dependency, they, too, fell into the criminal justice net created by public policy.

The vast scope of impacts on families and communities could well have been predicted had policy makers taken the time to make such an assessment. But when the subject is crime policy, speed, rather than reflection, is of the essence. Thus, the haste in 1986 when Congress adopted harsh mandatory drug sentencing laws following the death of basketball star Len Bias, the overnight movement that turned three strikes from a baseball image to a national crime policy in 1994, and the seeming regularity with which legislators adopt a crime of the month campaign. Neither victims nor offenders are well served by such a process.

But the problem is much greater than this if we are still working under the presumption that the criminal justice system is the best or most appropriate venue in which to address behavior that threatens public safety. Rather than investigating the circumstances of families or communities that enhance social solidarity and communicate shared values, a criminal justice–centered policy applies a reactive, and increasingly punitive, approach to the resolution of social conflict. One of the many ironies of this development is that many of the most anti-Washington politicians on the national scene are among the first to champion federal directives and incentives for states to build and fill more prisons.

Corrections costs have been the fastest growing segment of state budgets, and this has meant that virtually all other aspects of spending, including funds for education and social welfare, have been affected in order to accommodate prison expansion. This distortion of decision-making detracts from approaches to the problem that could build upon and strengthen the processes by which families and communities contribute to raising children who feel valued and who have a sense of belonging to a community. Whether we are looking at wealthy communities or poor ones, these processes are critical to the healthy functioning of neighborhoods and a reduced propensity for crime.

As we can see from the breadth of issues covered in this book, decisions regarding our national approach to the problem of crime clearly need to be framed in a much broader context than in the past. With the unprecedented expansion of the prison system over three decades has come a complex network of invisible punishments affecting families and communities nationwide.

Ultimately, the impact of mass imprisonment on American society needs to be considered not just in terms of efficacy or benefits but as a moral question as well. Even to the extent that some policy-makers may believe that incarceration is the primary cause of the falling crime rate, this should hardly be cause for celebration. As Vivien Stern notes in her chapter, other nations have demonstrated that it is quite possible to maintain far lower rates of crime and violence without resorting to world record prison building; indeed, most of the rest of the world is moving away from this approach to crime. Americans may continue to lead the world in incarceration, but it comes at a terrible social cost, and increasingly isolates us from the rest of the world.

PART I

Beyond Doing Time: The Lifetime Consequences of Imprisonment

1

Invisible Punishment: An Instrument of Social Exclusion

Jeremy Travis ¹

I. BRINGING INVISIBLE PUNISHMENT INTO VIEW

Prisons have this virtue: They are visible embodiments of society’s decision to punish criminals. As we punish more people, the number of prisons increases. We can count how many people are in prison, measure the length of the sentences they serve, determine what we spend to keep them there, and conduct empirically grounded analysis of the costs and benefits of incarceration. Because prisons make punishment visible, we can more easily quantify the policy debates over the wisdom of this application of the criminal sanction.

Not all criminal sanctions are as visible as prisons: We punish people in other, less tangible ways. Community corrections is one example. While the number of prisoners has quadrupled over the past two decades, the number of adults under criminal justice supervision through parole and probation agencies has more than tripled.² This form of punishment is not as obvious to the public: Probationers and parolees can easily become invisible. Yet, the quantum of punishment meted out through community-based sentences still has discernable bounds. We know the number of people under community supervision. We can measure the length of their sentences. Similarly, we can quantify, and thereby make visible, the imposition of criminal fines, the collection of restitution, and the forfeiture of assets, three other criminal sanctions that have expanded over recent years.

This chapter focuses on a criminal sanction that is nearly invisible: namely, the punishment that is accomplished through the diminution of the rights and privileges of citizenship and legal residency in the United States. Over the same period of time that prisons and criminal justice supervision have increased significantly, the laws and regulations that serve to diminish the rights and privileges of those convicted of crimes have also expanded. Yet we cannot adequately measure the reach of these expressions of the social inclination to punish. Consequently, we cannot evaluate their effectiveness, impact, or even implementation through the myriad private and public entities that are expected to enforce these new rules. Because these laws operate largely beyond public view, yet have very serious, adverse consequences for the individuals affected, I refer to them, collectively, as invisible punishment.³

They are invisible in a second sense as well. Because these punishments typically take effect outside of the traditional sentencing framework—in other words, are imposed by operation of law rather than by decision of the sentencing judge—they are not considered part of the practice or jurisprudence of sentencing. Through judicial interpretation, legislative fiat, and legal classification, these forms of punishment have been defined as civil rather than criminal in nature, as disabilities rather than punishments, as the collateral consequences of criminal convictions rather than the direct results.⁴ Because they have been defined as something other than criminal punishment, scholars, legislators, criminal