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The Lessons of Law and Order: What Canadians Can Learn From Failed US Crime Policy

Wednesday, 05 October 2011 05:42 By Susan Searls Giroux, Truthout | News Analysis
The Lessons of Law and Order What Canadians Can Learn From Failed US Crime Policy

An Ontario Provincial Police vehicle. (Photo: NapaneeGal)

"I want to be the Premier to bring change these families need and deserve. Change that puts criminals to work. Change that treats victims of crime with respect. Change that gives police officers the tools and authority to do their jobs safely and properly." -Tim Hudak, Ontario Progressive Conservative leader

Ontarians have been duly warned that their only law-and-order choice in the upcoming October 6 provincial election is Tim Hudak, the Progressive Conservative candidate. Hudak's get-tough-on-crime platform recapitulates many of the themes of Stephen Harper's new majority conservative government, which assumed power last year on promises to cut taxes and fight crime. The recently unveiled omnibus bill Harper pledged to pass within 100 sitting days, entitled the "Safe Streets and Communities Act," seeks to increase the maximum penalty for drug possession and production, increase mandatory minimum penalties and sentences, eliminate house arrest and pardons for serious offences, extend adult sentences to violent young offenders and lift the publication ban on the names of said youthful offenders, give new sanction and greater power to police and provide greater protections for victims of crime. Likewise, Hudak vows to toughen the treatment of criminals by requiring 40 hours of manual labor a week, eliminating welfare and insurance fraud, strengthening the police force and fighting government bureaucracy in favor of victims' rights - all while providing tax relief for hardworking families.

The muscular law-and-order shift in mainstream political rhetoric in both Ontario and Canada, and its deepening popular appeal, strike an uncanny cord with ex-pat Americans like me, who came of age in the post-civil rights era and witnessed the galvanization - and polarization - of the US electorate by successive waves of counter-revolutionary change that rolled back many of the hard-won advances of that turbulent time. The four-decade dismantling of the social state, its safety net and provisions, which began with the Nixon "tax revolt" in the 1970s, and continued with the Reagan Revolution of the 1980s; Clinton's welfare reform in the '90s; and the permanent, trillion-dollar tax cuts introduced by Bush, Jr. and extended by Obama in the new millennium were, whether consciously linked or not, invariably accompanied by an expansion of the carceral state through a similarly successive logic of war - on crime, on drugs and on terror.

Ontarians’ none-too-brief affair with Mike Harris notwithstanding, Canadian commitments to social services like universal health care remain more robust than that of their southern neighbors, just as their attachment to the militarized metaphysic of the so-called American century is, mercifully, far less. But countervailing political pressures are intensifying nonetheless. Critics of the recent law-and-order measures promoted by Conservatives in Canada have focused by and large on the financial costs of anti-crime proposals that either have become or likely will become law to a national economy precariously poised on the brink of another recession following the 2008 global financial meltdown. To be sure, cost is a deeply significant question at a time when federal, provincial and city governments have already begun to implement, in the name of austerity, a number of cuts to social benefits and services, and when the national crime rate, according to 2007 Statistics Canada data, has reached its lowest point in 30 years. Yet, I hope to demonstrate in what follows that Canadians must be afforded a more capacious and more meaningful understanding of the notion of "cost" associated with aggressive anti-crime legislation when they are beseeched by politicians in this and future elections for their support - one that takes into account not only economic cost, but less immediate and often less visible social, intellectual, political and moral costs that they will incur, sooner or later, as a collectivity.

I.

The issue of cost even in the most limited fiscal sense is notoriously difficult to parse, as the disparate reported estimates associated with Harper's legislative proposals have indicated. After much prodding and even more delay, the government eventually produced documentation that suggested that 18 recently proposed measures would cost Canadians approximately $631 million. In contrast, the independent parliamentary budget officer reported that one measure alone would cost billions. Other skeptics literally went for broke. The Canadian Association of Elizabeth Fry Societies and the John Howard Society of Canada collectively voiced their concerns that the Safe Streets and Communities Act would "bankrupt Canada" at a news conference just before the bill's formal introduction.(i) Although accusations of bankrupting the nation may sound like cheap political theater, we would do well to consider before dismissing such claims the trajectory of prison growth and associated costs in the US. Recognizing early on that exploiting popular fears and frustration about crime won elections, particularly in the aftermath of the turbulent 1960s, Democrats and Republicans looking to one up another on "get tough" crime policy forged the perilous path Conservative Canadian politicians are increasingly committed to travel: They armed police with paramilitary weaponry and surveillance equipment, militarized city spaces, increased incarceration rates exponentially with mandatory minimums and extended them with truth in sentencing, sent child offenders to adult prisons and made lifers out of nonviolent offenders with "three strikes" laws. In the span of three and a half decades, the prison population grew from 196,000 inmates in 1972(ii) to over 2,300,000 behind bars - and over 7.3 million in total in the correctional system - by 2011 making the US, "the land of the free and home of the brave," the world's largest jailer.(iii)

But at what cost to US taxpayers? As Canadians have discovered, estimates vary in the extreme, yet seldom provide a comprehensive assessment. Spending per prisoner differs from state to state, ranging from $18,000 a year in Mississippi to nearly $50,000 a year in California. For the 200,000 "elderly" inmates, who are by definition over 50 years old and now constitute the fastest growing sector of the inmate population thanks in large part to radical revisions in sentencing laws, costs are over $70,000 per inmate per year, though the vast majority have long ceased to pose any threat to society.(iv) In a study done by the US Bureau of Justice Statistics, "Direct expenditures by criminal justice function, 1982-2006," the US spent $68,747,203,000 on corrections in 2006 alone.(v) "Direct expenditures" however do not provide the total costs associated with prison construction, such as the interest paid on money typically borrowed or on cost overruns.(vi) Nor do they account for "off-budget" items like the large sums of money paid to for-profit businesses that provide services such as food and medical care to inmates in the correctional setting, though they impose a hefty cost to taxpayers nonetheless.(vii) Nor does the nearly $69 billion-a-year figure calculate the loss of tax revenue for the over two million men and women barred from working (though it does artificially decrease already alarmingly high unemployment rates). Nor are expenses factored in relating to the over one million children inmates have, many of whom are in foster care or supported by taxpayers in some manner.

Nor are public health costs highlighted, which would also throw an unwelcome spotlight on associated public health risks. Overcrowded prisons are high-risk settings for the spread of infectious diseases, and when inmates are eventually released, many will bring additional health costs and risks to their communities. Levels of tuberculosis in prison, according to the World Health Organization, are up to 100 times higher than in civilian populations, with 24 percent of cases being multidrug resistant.(viii) Because 80 percent of prison and jail inmates in the US have serious substance abuse problems, according to the US Center for Disease Control, they are also at substantially higher risk for contracting HIV or hepatitis, from five to ten times the general population.(ix) In fact, federal judges have determined that the health system within California prisons, where the correctional system is in a state of acute crisis, are so inadequate as to violate the constitutional guarantee against cruel and unusual punishment, and are ordering the prison population to be reduced by 40,000 over a two-year period.(x) Ironically, this bold intervention on behalf of prisoner rights will mean, for the majority of ex-cons, a complete loss of health care and medicine to treat and prevent the spread of disease once they return to civilian life - and a corollary shift of financial burden from the prison system to emergency services. In short, assessments of direct costs associated with get-tough legislation fail to register the substantial accumulated risks and economic costs these laws unleash, particularly on poor and minority communities hardest hit by the prison boom - a point upon which I will elaborate in short order.

For those who refuse to put a price tag on public safety, it is worth posing the question of whether get-tough measures have actually reduced crime. The astonishing answer is at best "not really," which is only slightly less deflating than "not at all." Given the billions spent annually on corrections, there is increasing evidence that harsher penalties for convicts have not proven to be effective deterrents against crime, and certainly not when compared to much cheaper alternatives to incapacitation such as retraining, or community service, or drug treatment given the soaring numbers of addicts in prison. A July 2010 article in The Economist cited a recent study by Bert Useem of Purdue University and Anne Piehl of Rutgers University who estimate that "a 10 percent increase in the number of people behind bars would reduce crime by only 0.5 percent." Further, they argue, "In states that currently lock up the most people, imprisoning more would actually increase crime," providing evidence to support claims asserted by criminologists that mass incarceration can have a "criminogenic" effect.(xi)

The idea that increased incarceration can somehow cause crime, is to say the least, counterintuitive, if not laughable, given the contemporary climate of public opinion in North America. But the relationship between incarceration and crime is quite complex. Suffice it here to point out that because poor men of color, who make up 70 percent of the prison population in the US, live in concentrations in neighborhoods that are racially and economically homogeneous - that is to say, have remained deeply segregated not by formal legal imposition, but through informal, market-based private preferences - some of the places where these men live are particularly hard hit by incarceration, with up to 25 percent of adult male residents of certain neighborhoods locked up on any given day.(xii) There is indeed a well-established theory and a solid body of evidence to indicate, as Todd Clear argues, that "high levels of incarceration concentrated in impoverished communities has a destabilizing effect on community life, so that the most basic underpinnings of informal social control are damaged. This, in turn, reproduces the very dynamics that sustain crime."(xiii)

At the same time, it may be argued that focusing on the question of economic cost - and even the effectiveness of harsher anti-crime policies - are deeply insignificant issues to put to law-and-order proponents, if in fact their long-term goal is to shrink public coffers in the interests of "limiting" the role of government (US advocates of such policies favor more violent "drowning" and "starving" metaphors) and turning most of its functions over to the private sector. Most Canadians still believe in a social contract, so much so that a politician running on a nakedly neoliberal platform of privatization and deregulation would face widespread popular opposition. Yet, a less direct route to privatization may well work, particularly one that plays to the insecurity and vulnerability of a citizenry already shaken by economic volatility, global terrorist threats and ecological precarity. In the US, the "get tough" movement is and has remained popular with Washington ideologues and much of the electorate, even as it succeeded quite literally in "bankrupting the states" in less than two decades, according to the Connecticut corrections commissioner attending a high-profile Washington conference in 1992.(xiv) In other words, two decades into this four-decade mass incarceration experiment, state budgets were already well into the red, which translated at that time into deep cuts in the nation's health care; K-12 education; and, most profoundly, higher education - funding for which is seen as "discretionary," thus hardly a guarantee to begin with. Since 1992, Americans have had to contend with spiraling tuition rates and dwindling government-sponsored student loan programs - which pushed middle-class parents to the financial edge well before the 2008 recession sent them over - saddled most students with enormous debt as a result of new predatory private lending services and placed college well out of reach for youth of poor and minority families. Though bankrupt by the end of the first Bush administration, the devastating consequences of state impoverishment wouldn't be seen quite so violently or viscerally until the second term of Bush Jr. when Hurricane Katrina blew apart New Orleans and other coastal cities of the South, leaving citizens to their own wretched devices for days and weeks on end. Though law-and-order proponents invariably appeal to the personal safety and security of individual men, women and their families, as Harper and Hudak's anti-crime rhetoric reflects, there is a direct correlation between increases in state (and provincial) appropriations for criminal justice and decreases in spending on actual social safety nets most citizens support like welfare, health care and education - especially higher education.(xv)

II.

Economic costs aside, aggressive crime legislation and the commensurate growth of prison populations in both the US and Canada also have incurred significant social costs. As I've already indicated, one of the most significant impacts of the aggressive get-tough legislation has been to deepen already existing social inequalities along ethnoracial and class lines in North America - in spite of the officially colorblind legal formalism of the US and constitutionally secured multicultural commitments of Canada. Though the rate of incarceration in Canada is far less than that of the US, Canadians lock up more of their citizens than the majority of its industrialized European and Asian counterparts, and both countries share glaring and growing disproportionalities in incarceration. According to Statistics Canada, in 2005-2006 Aboriginal adults made up 4 percent of the adult population, yet they constituted 21 percent of the adult male prisoner population, 30 percent of the adult female prison population and 24 percent of admissions to provincial/territorial sentenced custody, with much higher percentages in Manitoba where Aboriginal people accounted for 71 percent of sentenced admissions (though 16 percent of the outside population) and Saskatchewan where Aboriginal adults constituted 79 percent of the total prisoner population, though only 15 percent of the outside population.(xvi) This, even before the passage of the Harper's 2010 proposals for more and longer prison sentencing, prompting one to ask what such disparities might look like now and in the near future, assuming that his new omnibus crime package becomes law.

Recent US history offers an unsettling potential parallel should Canada continue to follow the US lead in law-and-order crack down. According to a report released by the Pew Center in March 2009, one in every 31 adults resides in the US corrections system; broken down racially, the numbers are one in 11 are African-American, one in 27 are Latino and one in 45 are white. Over 70 percent of those in prison are people of color, though they make up about 24 percent of the general population. Such stark racial disparities have led a number of critics to draw comparisons between prisons and earlier regimes of racial rule in the US. One such critic is the renown sociologist Loic Wacquant, who has argued that the US has not one, but many "peculiar institutions," the expanding carceral empire constitutes only the most recent of these, which continues to perform the tasks once achieved through chattel slavery, Jim Crow and urban ghettoization in terms of efforts to define, confine and control African-American populations. According to Wacquant, it is "Not crime, but the need to shore up an eroding caste cleavage ... that is the main impetus behind the stupendous expansion of America's penal state in a post-Keynesian age...." What distinguishes the carceral system of today from slavery, or Jim Crow, or the mid-20th-century ghetto is that it "does not carry out a positive economic mission of recruitment and disciplining of the workforce," but rather "serves to warehouse the precarious and deproletarianized fractions of the black working class, be it that they cannot find employment owing to a combination of skills deficit, employer discrimination and competition from immigrants...."(xvii) Put in lay terms, Wacquant's analysis serves to underscore the social consequences of the pervasive racial backlash as well as unprecedented economic change that have come to mark the post-civil rights era.

As a result of a confluence of factors from technological advance to renewed international competition from nations like Germany and Japan, whose infrastructure was destroyed by World War II, to skyrocketing costs in production associated with disappearing natural resources, to the successes of recent wildcat strikes by labor unions, the 1970s bore witness to breakneck deindustrialization, deregulation and union busting which lead, in turn, to robust growth in corporate profits and gross domestic product, but also increasing joblessness, poverty and decaying infrastructure for everyday people. These latter pressures were felt first in the nation's urban centers before they would eventually spread out geographically and up the socioeconomic scale, threatening the very viability of the American middle class. Reagan was the first president to capitalize on this widespread economic insecurity and racial resentment. Invoking a racially coded rhetoric that effectively polarized the electorate, he undertook to dismantle the social welfare state - which he rebaptized as a broken system that nurtured the dependency of "welfare queens" and other degenerates living at taxpayers' expense - in order to liberate markets and consumer-citizens from burdensome governmental interference perceived to be too inclusive and too solicitous of "special interests" at the expense of hardworking "real Americans." Privatization of public expenditure was the necessary means to "free" capital from profligate spending on education, health, and other care-taking functions (nonetheless vital both to citizens' well-being and to political democracy), thereby extending the reach of the market and its much vaunted neutrality, rationality and efficiency. Ontarians will recall a similar logic subtending Mike Harris’s infamous “Common Sense Revolution” begun in the mid-1990s.  One of Harris’s first major policy decisions was to slash public assistance by 22%, which was followed by various attempts to sell off government-owned enterprises like Ontario Hydro, the Liquor Control Board of Ontario and the newly constructed 407 highway system—the one privatization scheme that was an overt success. Hudak, in contrast, would appear to have chosen a more roundabout path to privatization in his pursuit of government-drowning anti-crime legislation.

In keeping with the general trend toward deregulation, the formal dismantling of state supported Jim Crow segregation in the U.S. lead simultaneously to the privatization of racist expression, thus freeingthe forces of racial reaction and retrenchment from government interference, let alone regulation. Rapid market-based residential resegregation was an immediate effect, with public and legal commitments to colourblindness proffering an effective alibi for an era of exacerbated racial inequality. Reagan also infamously declared a war on drugs and radically rewrote crime policy, inaugurating a pattern of racially fueled neoliberal divestment (or neoliberally fueled racial backlash) that successive presidents - Democratic and Republican alike - would extend and expand. If the war on drugs can be said to have any success at all, it "succeeded" in sending more young black males to prison than to college and in escalating tensions between police and the minority communities they were to serve and protect. Three decades later, one in three young black males will spend some time in the criminal justice system, in spite of the fact that drug use is relatively the same across racial and ethnic groups. Moreover, the escalation in forms of collateral punishment, or punishment meted out along side or after incarceration, in turn has broken up families where parental rights weren't dissolved altogether, and increased poverty and unemployment. It denied ex-felons for life the right to public housing, food stamps, veterans' benefits, and in most states voting rights, the net result of which has been to recapitulate the "social death" Orlando Patterson ascribed to slaves in the antebellum South.(xviii) The devastation to black communities as a result of the prison binge in the form of spiraling poverty, unemployment and (ironically) crime has been well documented. And indeed, this should not be surprising in a nation that has made closing "failed" schools (i.e. schools in poor, typically minority districts) and opening jails the signature of its domestic policy, where, in fact, states "even determine how many prison cells to build based on 4th grade reading scores and graduation rates."(xix) The decision to invest in prison construction over - and at the expense of - the nation's already cash-strapped public schools and universities reveals the degree to which investor returns in a hot growth industry that corrections has become far outweigh the social returns of an educated and engaged public. And this leads me to my third point.

III.

Less obvious are the specific - and staggering - intellectual costs of a law-and-order regime that has dramatically altered the very logic of governance, the very capacity for critical analysis and reflection on the part of citizens in the US. In comparison to expenditures on America's many wars abroad and at home, its geographic deployments (in Iraq/Afghanistan/Libya) and its symbolic ones (on terror, on drugs, on crime), spending on education has been a low priority for decades. Only now have the consequences of these decisions become difficult to ignore, even as the underlying causes and connections remain below the radar for the majority of Americans. Consider the state of California, once home to the nation's most renowned systems of higher education, and now committed to the "largest prison building program in the history of the world."(xx) In an intense competition for state resources over the last decade in particular, prisons have emerged as the clear winner as greater and greater portions of the state appropriations and new opportunities for capital investment flow past the post-secondary sector to the California Department of Corrections (CDC). Not only have universities experienced a steep decline in state and federal funding with obvious impacts on student aid, class sizes, infrastructural repair, and the like, but the law-and-order policies that have fueled the nation's mass incarceration experiment have impacted the very mission of the university in terms of its contributions to the production of new knowledge - and in terms of its commitment to thought itself.

Like the cold war and later the war on terror, the war on crime dramatically influenced the production and circulation of knowledge in the academy, lending intellectual heft to policy decisions supportive of, and providing the technical expertise for, military adventures at home and abroad. As Ruth Wilson Gilmore's recent analysis reveals, the massive size and flexible budget of the CDC has been the subject of innumerable critical studies by the state's universities. The focus of these, however, has not been to challenge the political exploitation of an electorate whose fears of crime were fueled by ever-increasing media reportage, even in periods when crime rates stabilized or fell. Nor has the impetus been to raise ethical or philosophical questions about the recent historical shift in penal emphasis from "rehabilitation" to "punishment." Nor have these studies been committed to raising sociological or criminological questions about shockingly disproportional rates of poor and minority youth behind bars, or even the effectiveness of incarceration among a range of criminal justice responses, which are demonstrably cheaper and reduce recidivism. Rather, it has been the "pitched competition" between the CDC and all other state agencies dependent on the general fund that "seems to have prompted the university to criticize the CDC in such a way that the university itself would become a necessary player in the CDC project as a supplier of efficiency expertise, while freeing up funds for other productive state activities." The engineers, for example, who conducted some of these studies, did so in the interests of placing themselves in direct line with the CDC's massive funding steam. Gilmore's assessment of this new relationship is chilling: not only did the university refuse to question the identification of crime itself as the central problem, as opposed to, say, the unprecedented expansion of the criminal justice bureaucracy in an era of "shrinking government" no less, but it was posed as a problem for engineering in the interests of cost reduction, sacrificing its obligation to a much more capacious and critical form of thought and reason on the mantel of rationalized efficiency:

As with earlier studies, the central problem remained crime and its mitigation through imprisonment, and the solution turned on cost-effectiveness in the design-bid-build sequence for prison construction - rather than any reevaluation of, for example, the relation between crimes (old and new), education, and recidivism.... The unspoken power of these studies lies in the way the university presents itself, via its sober, analytical engineering faculty, as an eminently efficient institution.[xxi]

The studies thus become emblematic of the ways in which many universities have sought to adjust to an era of austerity by breaking with older models of itself as an autonomous institution devoted to the singular pursuit of truth in efforts to advance its new self-image as "a competitive knowledge factory increasingly responsive to market forces."(xxii) Thus, the war on crime impacted those academic disciplines that deal directly or indirectly with the criminal justice system and its expanding prison complex. Expertise is required not only in the construction and maintenance of prisons, but in the training of a vast range of personnel - from police and prison guards to specialized forensics teams and IT experts, to psychologists, counselors and social workers, to criminal attorneys and judges. Gilmore notes that community colleges throughout the state rushed to offer associates degrees in correctional science to meet the needs of the immediate new labor market prompted by new prisons. Of course, professional training in such challenging terrain could be a very positive and progressive development, an occasion to produce the next generation of criminal justice leaders who would bring to the table all manner of critical, intellectual, ethical and moral concerns and commitments. But the study of corrections and the knowledge produced as a result of those efforts remain singularly focused on uniformity, efficiency and cost effectiveness - rationalized commitments that in their technical formalism exclude questions of ethics, social value, or the public good from the start. The Merton P. Stoltz Professor of the Social Sciences and economist Glenn Loury has spoken to the limits of social-scientific inquiry in this instance: "Science may be necessary, but it is certain to be insufficient here.... [N]o cost-benefit analysis of our world-historic prison build-up over the past 35 years is possible without specifying how one should reckon in the calculation the pain being imposed on the persons imprisoned, their families and their communities." Tragically, the influence of the law-and-order obsession that drives the mass incarceration experiment extends well beyond post-secondary education.

The war on crime also fundamentally altered American public school education as well as teacher training and programs in school administration offered by colleges of education across the nation. The Safe Schools Act of 1994 was patterned, revealingly, after the landmark 1968 Omnibus Crime Control and Safe Streets Act, as Jonathan Simon observes in his study "Governing Through Crime," through which Congress "appropriated significant new funds, conditioning eligibility for this funding on the adoption by states and local school districts of techniques of knowledge and power calculated to focus more governance attention and resources on crime in schools, while assuring a more rapid and punitive response toward it."(xxiii) To qualify for federal money under the Safe Schools Act, schools must demonstrate that they have a serious problem with crime, violence and student discipline, as well as strategies for resolving it. School administrators are thus required to develop their own forms of data collection about crime, as well as assess what kinds of incidents constitute criminal activity - under conditions that provide every incentive to make such judgments as broad and expansive as possible. Moreover, effective measures and techniques for dealing with the problem of school crime, which Simon calls "penal pedagogies" because they have been lifted directly from prison settings - zero-tolerance policies, the implementation of school uniforms, in-school detentions, and the like.(xxiv) The result, notes Simon, is total transformation of what now constitutes effective school reform. Whereas the ideals of racial equality and racial justice once generated massive intellectual (if not quite financial) investment in school integration and modernization, the problem of crime and crime prevention has now "recast much of the form and substance of schools" nationwide.(xxv) As in prison settings, youth marginalized by race and class are primarily targeted by the new zero-tolerance policies. Simon's conclusion ominously highlights the degree to which the intellectual energies that fuel public policy are increasingly operationalized in the interests of disposing of problem populations:

If schools today are again coming to seem more and more like prisons, it is not because of a renewed faith in the capacity of disciplinary methods. Indeed, prisons and schools increasingly deny their capacity to do much more than sort and warehouse people. What they share instead is the institutional imperative that crime is simultaneously the most important problem they have to deal with and a reality whose "existence" - as defined by the federally imposed edict of ever-expanding data collection - is precisely what allows these institutions to maintain and expand themselves in perpetuity.(xxvi)

Simon's conclusions about the new role of public schools share much in common with Waquant's troubling observations about the new functionality of prisons - both institutions are increasingly designed not to educate or rehabilitate youth and adults in need, but to warehouse marginalized populations who are understood to have no meaningful role to perform in society. As depraved as that finding is, even more disturbing is that such transformation emerges not - or not wholly - from a place of thoughtlessness nor political extremism, but on the contrary, from the rational, efficient logic currently proffered by our educational institutions.(xxvii)

These institutional changes also reflect and extend changes in collective consciousness. They reveal a shift in what David Garland had called the "criminological episteme," to refer to how sociologists, criminologists and lay people have come to think about criminality, the individuals who commit crimes and forms of socially appropriate response. If there was a central explanatory theme to understanding criminality in the mid-century era of the social welfare state, it was one of social deprivation. Individuals committed crime because they were deprived of a meaningful education, proper family socialization, viable job opportunities or appropriate medical treatment for an abnormal psychological disposition. Solutions to the problem of crime, accordingly, lay in individualized rehabilitative treatment, support for families and in funding for social reforms the sought to improve education and job creation. In contrast, current understandings of crime reject this view in favor of a much darker vision of the human condition, one that is in keeping with the neoliberal repudiation of social safety nets and protections and its attachment to neo-Darwinian market competition and hyper-individualism. Contemporary criminologists have come increasingly to view "crime as a normal, routine, commonplace aspect of modern society, committed by individuals who are ... perfectly normal" where "normal" now presupposes individuals who are highly attracted to self-serving, anti-social and criminal behavior unless inhibited from doing so by robust and effective controls.(xxviii) And just as comprehensively, the common sense of incarceration shifted from an emphasis on correction to one of incapacitation and control, from rehabilitation to one of punishment and revenge.

IV.

What Canadians must decide in the days and years ahead is what kind of people they want to be, what mode of governance they want to support, what kind of society they want to emulate, what kind of future they want to create for their children. The lessons of the law-and-order regime in the US reveal a society deeply transformed by aggressive and abusive get-tough policies that, after 40 years, gave them no security; no safety; no peace; and for more and more of its citizens, no dignity. If the mid-century social welfare state was concerned, at least in theory, with citizens' social well-being in its performance of certain care-taking functions, including the funding of education, health care and public housing - a set of commitments the civil rights struggles of the 1960s was meant to expand to all citizens - the neoliberal law-and-order state that succeeded it has only grown more intrusive and more repressive, as resources drained from social safety nets were reallocated toward the police, military, prisons, border patrol, intelligence agencies and an expanding homeland security apparatus. And as fear overtook reason, personal safety trumped collective security - all the better for those who manipulated world markets and induced volatility into every aspect of daily life, who drained public coffers in an accumulation of obscene wealth, and who sought to inflame the apparently antagonistic interests of disconnected individuals, to the detriment of the vast majority of humanity.

This vast and violent apparatus eventually overtook the very site and role of responsible governance, exacting in its near-death blow to democracy the most severe political, moral and ethical costs. And the consequences of these decisions have been felt not only nationally, but globally, as failed economic policy and unbridled corporate greed led to global financial catastrophe. As Canadians ponder the choices before them, they would do well to recall the words of the late Jack Layton in his last letter to his fellow citizens:

There are great challenges before you, from the overwhelming nature of climate change to the unfairness of an economy that excludes so many of you from our collective wealth, and the changes necessary to build a more inclusive and generous Canada. I believe in you. Your energy, your vision, your passion for justice are exactly what this country needs today.[xxix]

There are indeed great challenges before us. And our first priority must be to affirm that governing through crime is no substitute for governing through democracy, that a society committed to the justice, equality and freedom is far superior to one premised on prisons, punishment and a culture of cruelty.

Footnotes:

i. Cited in Editorial by CBC News, "Tory Crime Bill Cracks Down on Drug, Sex Offences" Sept. 20, 2011. Available here.

ii. Mauer, Race to Incarcerate, NY: The New Press, 1999. p. 19.

iii. The Sentencing Project offers the most recent rates of US incarceration. See here.

iv. See "Elderly Inmates Swell Prisons, Driving up Health Care Costs," USA Today, February 28, 2004. Available here. And Stephanie Chen, "Prison Health-Care Costs Rise as Inmates Grow Older and Sicker" CNN Justice, November 13, 2009 Available here.

v. Available here.

vi. For a comprehensive analysis of what is and is not counted in the costs of mass incarceration, see Steven Donzinger, Ed. "The Real War on Crime: The Report of the National Criminal Justice Commission" (NY: HarperCollins). When the report was published in 1996, the average cost of a new prison cell was $54,000, but interest paid on the money typically borrowed increased the cost of that cell to over $100,000 (p. 49). Of course, accounting figures are now 25 years old, so that to extrapolate into the present one would have to take into consideration not only current rates of inflation, but also the cost of borrowing in this most austere lending climate. Nonetheless, itis the pattern of systemic exclusion from costing that remains particularly illuminating.

vii. Comparable estimates by Statistics Canada indicate that the cost of incarcerating a federal female in 2004-2005 prisoner fell between $150,000 and $200,000, whereas the cost of incarcerating a federal male prisoner was roughly $87,665. The disparity between spending in the US and Canada per prisoner has likely more to do with differences in actual costing - where food and medicine are included in the one context, but not in the other - rather than significantly better conditions in the North.

viii. "Tuberculosis in prisons" World Health Organization. Available here.

ix. See "Drug Use, HIV, and the Criminal Justice System." Published by the Center For Disease Control. Available here.

x. Michael Meranze, "California's Crisis: Coming to a Neighborhood Near You" Huffington Post. Posted August 24, 2009. Available here.

xi. See "Rough Justice in America: Too Many Laws, Too Many Prisoners" The Economist, July 24, 2010, print edition. Available here.

xii. Clear, Todd R. "The Problem with 'Addition by Subtraction': The Prison-Crime Relationship in Low-Income Communities, in Invisible Punishment: The Collateral Consequences of Mass Imprisonment," ed. Mark Mauer and Meda Chesney-Lind. NY: The New Press: 2002. p. 181-193.

xiii. Clear, p. 193.

xiv. Cited in Mark Mauer, "Race to Incarcerate," p. 67.

xv. See, Marc Mauer, "Race to Incarcerate," p. 181.

xvi. See "Facts & Statistics" posted on prisonjustice.ca sourced from Juristat, Statistics Canada (2005-6). Updated August 2008. Available here.

xvii. Loic Wacquant, "From Slavery to Mass Incarceration" New Left Review 13 Jan-Feb. 2002. Available here.

xviii. For an analysis of the "hidden punishments" of incarceration, see "Invisible Punishment," Ed. Mauer and Chesney-Lind.

xix. Hagopian, "The Dog Eats its Tail," unpaginated electronic work.

xx. Ruth Wilson Gilmore, "Golden Gulags: Prison, Surplus, Crisis, and Opposition in Globalizing California," Berkeley: University of California Press, 2007. p. 88.

xxi. Ruth Wilson Gilmore, "Golden Gulags," p. 118. (Emphasis added.)

xxii. Ibid.

xxiii. Simon, "Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear," Oxford: Oxford University Press, 2007. p. 216.

xxiv. Zero tolerance policies have already found their way to Toronto Area Public Schools and have been at the center of much controversy. For a brilliant analysis of their impact, see Jennifer Fisher, "'The Walking Wounded': Youth, Public Education, and the Turn to Precarious Pedagogy," The Review of Education, Pedagogy, and Cultural Studies. 33.5. forthcoming, fall 2011.

xxv. Simon, "Governing through Crime," 209.

xxvi. Simon, "Governing through Crime," p. 231.

xxvii. I have discussed at some length what I understand to be the consequences of such unambiguous institutional preferences for putatively objective, nonpolitical, quantifiable and empirical data collection as against qualitative and critical research in "Between Race and Reason: Violence, Intellectual Responsibility and the University to Come," Stanford University Press, 2010. p. 7-9.

xxviii. David Garland, "The Culture of Control: Crime and Social Order in Contemporary Society," Chicago: University of Chicago Press, 2001. p. 15.

xxix. "Jack Layton's Last Letter to Canadians." CBC.ca. Posted August 22, 2011. Available here.

Susan Searls Giroux

Susan Searls Giroux is associate dean of humanities and an associate professor of English and cultural studies at McMaster University. Her most recent book, "Between Race and Reason: Violence, Intellectual Responsibility, and the University to Come" (Stanford UP), won the prestigious Gary A. Olson Award for Best Book Published in Rhetoric and Cultural Studies in 2010. She has also coauthored, with Henry Giroux, "Take Back Higher Education," and, with Jeffrey Nealon, "The Theory Toolbox: Critical Concepts for the Humanities, Arts, & Social Sciences Second Edition," a revised and expanded second edition of which appeared in summer 2011. She has published numerous articles in Third Text, Social Identities, The CLR James Journal, JAC, Works and Days, Cultural Critique, College Literature and Tikkun.


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The Lessons of Law and Order: What Canadians Can Learn From Failed US Crime Policy

Wednesday, 05 October 2011 05:42 By Susan Searls Giroux, Truthout | News Analysis
The Lessons of Law and Order What Canadians Can Learn From Failed US Crime Policy

An Ontario Provincial Police vehicle. (Photo: NapaneeGal)

"I want to be the Premier to bring change these families need and deserve. Change that puts criminals to work. Change that treats victims of crime with respect. Change that gives police officers the tools and authority to do their jobs safely and properly." -Tim Hudak, Ontario Progressive Conservative leader

Ontarians have been duly warned that their only law-and-order choice in the upcoming October 6 provincial election is Tim Hudak, the Progressive Conservative candidate. Hudak's get-tough-on-crime platform recapitulates many of the themes of Stephen Harper's new majority conservative government, which assumed power last year on promises to cut taxes and fight crime. The recently unveiled omnibus bill Harper pledged to pass within 100 sitting days, entitled the "Safe Streets and Communities Act," seeks to increase the maximum penalty for drug possession and production, increase mandatory minimum penalties and sentences, eliminate house arrest and pardons for serious offences, extend adult sentences to violent young offenders and lift the publication ban on the names of said youthful offenders, give new sanction and greater power to police and provide greater protections for victims of crime. Likewise, Hudak vows to toughen the treatment of criminals by requiring 40 hours of manual labor a week, eliminating welfare and insurance fraud, strengthening the police force and fighting government bureaucracy in favor of victims' rights - all while providing tax relief for hardworking families.

The muscular law-and-order shift in mainstream political rhetoric in both Ontario and Canada, and its deepening popular appeal, strike an uncanny cord with ex-pat Americans like me, who came of age in the post-civil rights era and witnessed the galvanization - and polarization - of the US electorate by successive waves of counter-revolutionary change that rolled back many of the hard-won advances of that turbulent time. The four-decade dismantling of the social state, its safety net and provisions, which began with the Nixon "tax revolt" in the 1970s, and continued with the Reagan Revolution of the 1980s; Clinton's welfare reform in the '90s; and the permanent, trillion-dollar tax cuts introduced by Bush, Jr. and extended by Obama in the new millennium were, whether consciously linked or not, invariably accompanied by an expansion of the carceral state through a similarly successive logic of war - on crime, on drugs and on terror.

Ontarians’ none-too-brief affair with Mike Harris notwithstanding, Canadian commitments to social services like universal health care remain more robust than that of their southern neighbors, just as their attachment to the militarized metaphysic of the so-called American century is, mercifully, far less. But countervailing political pressures are intensifying nonetheless. Critics of the recent law-and-order measures promoted by Conservatives in Canada have focused by and large on the financial costs of anti-crime proposals that either have become or likely will become law to a national economy precariously poised on the brink of another recession following the 2008 global financial meltdown. To be sure, cost is a deeply significant question at a time when federal, provincial and city governments have already begun to implement, in the name of austerity, a number of cuts to social benefits and services, and when the national crime rate, according to 2007 Statistics Canada data, has reached its lowest point in 30 years. Yet, I hope to demonstrate in what follows that Canadians must be afforded a more capacious and more meaningful understanding of the notion of "cost" associated with aggressive anti-crime legislation when they are beseeched by politicians in this and future elections for their support - one that takes into account not only economic cost, but less immediate and often less visible social, intellectual, political and moral costs that they will incur, sooner or later, as a collectivity.

I.

The issue of cost even in the most limited fiscal sense is notoriously difficult to parse, as the disparate reported estimates associated with Harper's legislative proposals have indicated. After much prodding and even more delay, the government eventually produced documentation that suggested that 18 recently proposed measures would cost Canadians approximately $631 million. In contrast, the independent parliamentary budget officer reported that one measure alone would cost billions. Other skeptics literally went for broke. The Canadian Association of Elizabeth Fry Societies and the John Howard Society of Canada collectively voiced their concerns that the Safe Streets and Communities Act would "bankrupt Canada" at a news conference just before the bill's formal introduction.(i) Although accusations of bankrupting the nation may sound like cheap political theater, we would do well to consider before dismissing such claims the trajectory of prison growth and associated costs in the US. Recognizing early on that exploiting popular fears and frustration about crime won elections, particularly in the aftermath of the turbulent 1960s, Democrats and Republicans looking to one up another on "get tough" crime policy forged the perilous path Conservative Canadian politicians are increasingly committed to travel: They armed police with paramilitary weaponry and surveillance equipment, militarized city spaces, increased incarceration rates exponentially with mandatory minimums and extended them with truth in sentencing, sent child offenders to adult prisons and made lifers out of nonviolent offenders with "three strikes" laws. In the span of three and a half decades, the prison population grew from 196,000 inmates in 1972(ii) to over 2,300,000 behind bars - and over 7.3 million in total in the correctional system - by 2011 making the US, "the land of the free and home of the brave," the world's largest jailer.(iii)

But at what cost to US taxpayers? As Canadians have discovered, estimates vary in the extreme, yet seldom provide a comprehensive assessment. Spending per prisoner differs from state to state, ranging from $18,000 a year in Mississippi to nearly $50,000 a year in California. For the 200,000 "elderly" inmates, who are by definition over 50 years old and now constitute the fastest growing sector of the inmate population thanks in large part to radical revisions in sentencing laws, costs are over $70,000 per inmate per year, though the vast majority have long ceased to pose any threat to society.(iv) In a study done by the US Bureau of Justice Statistics, "Direct expenditures by criminal justice function, 1982-2006," the US spent $68,747,203,000 on corrections in 2006 alone.(v) "Direct expenditures" however do not provide the total costs associated with prison construction, such as the interest paid on money typically borrowed or on cost overruns.(vi) Nor do they account for "off-budget" items like the large sums of money paid to for-profit businesses that provide services such as food and medical care to inmates in the correctional setting, though they impose a hefty cost to taxpayers nonetheless.(vii) Nor does the nearly $69 billion-a-year figure calculate the loss of tax revenue for the over two million men and women barred from working (though it does artificially decrease already alarmingly high unemployment rates). Nor are expenses factored in relating to the over one million children inmates have, many of whom are in foster care or supported by taxpayers in some manner.

Nor are public health costs highlighted, which would also throw an unwelcome spotlight on associated public health risks. Overcrowded prisons are high-risk settings for the spread of infectious diseases, and when inmates are eventually released, many will bring additional health costs and risks to their communities. Levels of tuberculosis in prison, according to the World Health Organization, are up to 100 times higher than in civilian populations, with 24 percent of cases being multidrug resistant.(viii) Because 80 percent of prison and jail inmates in the US have serious substance abuse problems, according to the US Center for Disease Control, they are also at substantially higher risk for contracting HIV or hepatitis, from five to ten times the general population.(ix) In fact, federal judges have determined that the health system within California prisons, where the correctional system is in a state of acute crisis, are so inadequate as to violate the constitutional guarantee against cruel and unusual punishment, and are ordering the prison population to be reduced by 40,000 over a two-year period.(x) Ironically, this bold intervention on behalf of prisoner rights will mean, for the majority of ex-cons, a complete loss of health care and medicine to treat and prevent the spread of disease once they return to civilian life - and a corollary shift of financial burden from the prison system to emergency services. In short, assessments of direct costs associated with get-tough legislation fail to register the substantial accumulated risks and economic costs these laws unleash, particularly on poor and minority communities hardest hit by the prison boom - a point upon which I will elaborate in short order.

For those who refuse to put a price tag on public safety, it is worth posing the question of whether get-tough measures have actually reduced crime. The astonishing answer is at best "not really," which is only slightly less deflating than "not at all." Given the billions spent annually on corrections, there is increasing evidence that harsher penalties for convicts have not proven to be effective deterrents against crime, and certainly not when compared to much cheaper alternatives to incapacitation such as retraining, or community service, or drug treatment given the soaring numbers of addicts in prison. A July 2010 article in The Economist cited a recent study by Bert Useem of Purdue University and Anne Piehl of Rutgers University who estimate that "a 10 percent increase in the number of people behind bars would reduce crime by only 0.5 percent." Further, they argue, "In states that currently lock up the most people, imprisoning more would actually increase crime," providing evidence to support claims asserted by criminologists that mass incarceration can have a "criminogenic" effect.(xi)

The idea that increased incarceration can somehow cause crime, is to say the least, counterintuitive, if not laughable, given the contemporary climate of public opinion in North America. But the relationship between incarceration and crime is quite complex. Suffice it here to point out that because poor men of color, who make up 70 percent of the prison population in the US, live in concentrations in neighborhoods that are racially and economically homogeneous - that is to say, have remained deeply segregated not by formal legal imposition, but through informal, market-based private preferences - some of the places where these men live are particularly hard hit by incarceration, with up to 25 percent of adult male residents of certain neighborhoods locked up on any given day.(xii) There is indeed a well-established theory and a solid body of evidence to indicate, as Todd Clear argues, that "high levels of incarceration concentrated in impoverished communities has a destabilizing effect on community life, so that the most basic underpinnings of informal social control are damaged. This, in turn, reproduces the very dynamics that sustain crime."(xiii)

At the same time, it may be argued that focusing on the question of economic cost - and even the effectiveness of harsher anti-crime policies - are deeply insignificant issues to put to law-and-order proponents, if in fact their long-term goal is to shrink public coffers in the interests of "limiting" the role of government (US advocates of such policies favor more violent "drowning" and "starving" metaphors) and turning most of its functions over to the private sector. Most Canadians still believe in a social contract, so much so that a politician running on a nakedly neoliberal platform of privatization and deregulation would face widespread popular opposition. Yet, a less direct route to privatization may well work, particularly one that plays to the insecurity and vulnerability of a citizenry already shaken by economic volatility, global terrorist threats and ecological precarity. In the US, the "get tough" movement is and has remained popular with Washington ideologues and much of the electorate, even as it succeeded quite literally in "bankrupting the states" in less than two decades, according to the Connecticut corrections commissioner attending a high-profile Washington conference in 1992.(xiv) In other words, two decades into this four-decade mass incarceration experiment, state budgets were already well into the red, which translated at that time into deep cuts in the nation's health care; K-12 education; and, most profoundly, higher education - funding for which is seen as "discretionary," thus hardly a guarantee to begin with. Since 1992, Americans have had to contend with spiraling tuition rates and dwindling government-sponsored student loan programs - which pushed middle-class parents to the financial edge well before the 2008 recession sent them over - saddled most students with enormous debt as a result of new predatory private lending services and placed college well out of reach for youth of poor and minority families. Though bankrupt by the end of the first Bush administration, the devastating consequences of state impoverishment wouldn't be seen quite so violently or viscerally until the second term of Bush Jr. when Hurricane Katrina blew apart New Orleans and other coastal cities of the South, leaving citizens to their own wretched devices for days and weeks on end. Though law-and-order proponents invariably appeal to the personal safety and security of individual men, women and their families, as Harper and Hudak's anti-crime rhetoric reflects, there is a direct correlation between increases in state (and provincial) appropriations for criminal justice and decreases in spending on actual social safety nets most citizens support like welfare, health care and education - especially higher education.(xv)

II.

Economic costs aside, aggressive crime legislation and the commensurate growth of prison populations in both the US and Canada also have incurred significant social costs. As I've already indicated, one of the most significant impacts of the aggressive get-tough legislation has been to deepen already existing social inequalities along ethnoracial and class lines in North America - in spite of the officially colorblind legal formalism of the US and constitutionally secured multicultural commitments of Canada. Though the rate of incarceration in Canada is far less than that of the US, Canadians lock up more of their citizens than the majority of its industrialized European and Asian counterparts, and both countries share glaring and growing disproportionalities in incarceration. According to Statistics Canada, in 2005-2006 Aboriginal adults made up 4 percent of the adult population, yet they constituted 21 percent of the adult male prisoner population, 30 percent of the adult female prison population and 24 percent of admissions to provincial/territorial sentenced custody, with much higher percentages in Manitoba where Aboriginal people accounted for 71 percent of sentenced admissions (though 16 percent of the outside population) and Saskatchewan where Aboriginal adults constituted 79 percent of the total prisoner population, though only 15 percent of the outside population.(xvi) This, even before the passage of the Harper's 2010 proposals for more and longer prison sentencing, prompting one to ask what such disparities might look like now and in the near future, assuming that his new omnibus crime package becomes law.

Recent US history offers an unsettling potential parallel should Canada continue to follow the US lead in law-and-order crack down. According to a report released by the Pew Center in March 2009, one in every 31 adults resides in the US corrections system; broken down racially, the numbers are one in 11 are African-American, one in 27 are Latino and one in 45 are white. Over 70 percent of those in prison are people of color, though they make up about 24 percent of the general population. Such stark racial disparities have led a number of critics to draw comparisons between prisons and earlier regimes of racial rule in the US. One such critic is the renown sociologist Loic Wacquant, who has argued that the US has not one, but many "peculiar institutions," the expanding carceral empire constitutes only the most recent of these, which continues to perform the tasks once achieved through chattel slavery, Jim Crow and urban ghettoization in terms of efforts to define, confine and control African-American populations. According to Wacquant, it is "Not crime, but the need to shore up an eroding caste cleavage ... that is the main impetus behind the stupendous expansion of America's penal state in a post-Keynesian age...." What distinguishes the carceral system of today from slavery, or Jim Crow, or the mid-20th-century ghetto is that it "does not carry out a positive economic mission of recruitment and disciplining of the workforce," but rather "serves to warehouse the precarious and deproletarianized fractions of the black working class, be it that they cannot find employment owing to a combination of skills deficit, employer discrimination and competition from immigrants...."(xvii) Put in lay terms, Wacquant's analysis serves to underscore the social consequences of the pervasive racial backlash as well as unprecedented economic change that have come to mark the post-civil rights era.

As a result of a confluence of factors from technological advance to renewed international competition from nations like Germany and Japan, whose infrastructure was destroyed by World War II, to skyrocketing costs in production associated with disappearing natural resources, to the successes of recent wildcat strikes by labor unions, the 1970s bore witness to breakneck deindustrialization, deregulation and union busting which lead, in turn, to robust growth in corporate profits and gross domestic product, but also increasing joblessness, poverty and decaying infrastructure for everyday people. These latter pressures were felt first in the nation's urban centers before they would eventually spread out geographically and up the socioeconomic scale, threatening the very viability of the American middle class. Reagan was the first president to capitalize on this widespread economic insecurity and racial resentment. Invoking a racially coded rhetoric that effectively polarized the electorate, he undertook to dismantle the social welfare state - which he rebaptized as a broken system that nurtured the dependency of "welfare queens" and other degenerates living at taxpayers' expense - in order to liberate markets and consumer-citizens from burdensome governmental interference perceived to be too inclusive and too solicitous of "special interests" at the expense of hardworking "real Americans." Privatization of public expenditure was the necessary means to "free" capital from profligate spending on education, health, and other care-taking functions (nonetheless vital both to citizens' well-being and to political democracy), thereby extending the reach of the market and its much vaunted neutrality, rationality and efficiency. Ontarians will recall a similar logic subtending Mike Harris’s infamous “Common Sense Revolution” begun in the mid-1990s.  One of Harris’s first major policy decisions was to slash public assistance by 22%, which was followed by various attempts to sell off government-owned enterprises like Ontario Hydro, the Liquor Control Board of Ontario and the newly constructed 407 highway system—the one privatization scheme that was an overt success. Hudak, in contrast, would appear to have chosen a more roundabout path to privatization in his pursuit of government-drowning anti-crime legislation.

In keeping with the general trend toward deregulation, the formal dismantling of state supported Jim Crow segregation in the U.S. lead simultaneously to the privatization of racist expression, thus freeingthe forces of racial reaction and retrenchment from government interference, let alone regulation. Rapid market-based residential resegregation was an immediate effect, with public and legal commitments to colourblindness proffering an effective alibi for an era of exacerbated racial inequality. Reagan also infamously declared a war on drugs and radically rewrote crime policy, inaugurating a pattern of racially fueled neoliberal divestment (or neoliberally fueled racial backlash) that successive presidents - Democratic and Republican alike - would extend and expand. If the war on drugs can be said to have any success at all, it "succeeded" in sending more young black males to prison than to college and in escalating tensions between police and the minority communities they were to serve and protect. Three decades later, one in three young black males will spend some time in the criminal justice system, in spite of the fact that drug use is relatively the same across racial and ethnic groups. Moreover, the escalation in forms of collateral punishment, or punishment meted out along side or after incarceration, in turn has broken up families where parental rights weren't dissolved altogether, and increased poverty and unemployment. It denied ex-felons for life the right to public housing, food stamps, veterans' benefits, and in most states voting rights, the net result of which has been to recapitulate the "social death" Orlando Patterson ascribed to slaves in the antebellum South.(xviii) The devastation to black communities as a result of the prison binge in the form of spiraling poverty, unemployment and (ironically) crime has been well documented. And indeed, this should not be surprising in a nation that has made closing "failed" schools (i.e. schools in poor, typically minority districts) and opening jails the signature of its domestic policy, where, in fact, states "even determine how many prison cells to build based on 4th grade reading scores and graduation rates."(xix) The decision to invest in prison construction over - and at the expense of - the nation's already cash-strapped public schools and universities reveals the degree to which investor returns in a hot growth industry that corrections has become far outweigh the social returns of an educated and engaged public. And this leads me to my third point.

III.

Less obvious are the specific - and staggering - intellectual costs of a law-and-order regime that has dramatically altered the very logic of governance, the very capacity for critical analysis and reflection on the part of citizens in the US. In comparison to expenditures on America's many wars abroad and at home, its geographic deployments (in Iraq/Afghanistan/Libya) and its symbolic ones (on terror, on drugs, on crime), spending on education has been a low priority for decades. Only now have the consequences of these decisions become difficult to ignore, even as the underlying causes and connections remain below the radar for the majority of Americans. Consider the state of California, once home to the nation's most renowned systems of higher education, and now committed to the "largest prison building program in the history of the world."(xx) In an intense competition for state resources over the last decade in particular, prisons have emerged as the clear winner as greater and greater portions of the state appropriations and new opportunities for capital investment flow past the post-secondary sector to the California Department of Corrections (CDC). Not only have universities experienced a steep decline in state and federal funding with obvious impacts on student aid, class sizes, infrastructural repair, and the like, but the law-and-order policies that have fueled the nation's mass incarceration experiment have impacted the very mission of the university in terms of its contributions to the production of new knowledge - and in terms of its commitment to thought itself.

Like the cold war and later the war on terror, the war on crime dramatically influenced the production and circulation of knowledge in the academy, lending intellectual heft to policy decisions supportive of, and providing the technical expertise for, military adventures at home and abroad. As Ruth Wilson Gilmore's recent analysis reveals, the massive size and flexible budget of the CDC has been the subject of innumerable critical studies by the state's universities. The focus of these, however, has not been to challenge the political exploitation of an electorate whose fears of crime were fueled by ever-increasing media reportage, even in periods when crime rates stabilized or fell. Nor has the impetus been to raise ethical or philosophical questions about the recent historical shift in penal emphasis from "rehabilitation" to "punishment." Nor have these studies been committed to raising sociological or criminological questions about shockingly disproportional rates of poor and minority youth behind bars, or even the effectiveness of incarceration among a range of criminal justice responses, which are demonstrably cheaper and reduce recidivism. Rather, it has been the "pitched competition" between the CDC and all other state agencies dependent on the general fund that "seems to have prompted the university to criticize the CDC in such a way that the university itself would become a necessary player in the CDC project as a supplier of efficiency expertise, while freeing up funds for other productive state activities." The engineers, for example, who conducted some of these studies, did so in the interests of placing themselves in direct line with the CDC's massive funding steam. Gilmore's assessment of this new relationship is chilling: not only did the university refuse to question the identification of crime itself as the central problem, as opposed to, say, the unprecedented expansion of the criminal justice bureaucracy in an era of "shrinking government" no less, but it was posed as a problem for engineering in the interests of cost reduction, sacrificing its obligation to a much more capacious and critical form of thought and reason on the mantel of rationalized efficiency:

As with earlier studies, the central problem remained crime and its mitigation through imprisonment, and the solution turned on cost-effectiveness in the design-bid-build sequence for prison construction - rather than any reevaluation of, for example, the relation between crimes (old and new), education, and recidivism.... The unspoken power of these studies lies in the way the university presents itself, via its sober, analytical engineering faculty, as an eminently efficient institution.[xxi]

The studies thus become emblematic of the ways in which many universities have sought to adjust to an era of austerity by breaking with older models of itself as an autonomous institution devoted to the singular pursuit of truth in efforts to advance its new self-image as "a competitive knowledge factory increasingly responsive to market forces."(xxii) Thus, the war on crime impacted those academic disciplines that deal directly or indirectly with the criminal justice system and its expanding prison complex. Expertise is required not only in the construction and maintenance of prisons, but in the training of a vast range of personnel - from police and prison guards to specialized forensics teams and IT experts, to psychologists, counselors and social workers, to criminal attorneys and judges. Gilmore notes that community colleges throughout the state rushed to offer associates degrees in correctional science to meet the needs of the immediate new labor market prompted by new prisons. Of course, professional training in such challenging terrain could be a very positive and progressive development, an occasion to produce the next generation of criminal justice leaders who would bring to the table all manner of critical, intellectual, ethical and moral concerns and commitments. But the study of corrections and the knowledge produced as a result of those efforts remain singularly focused on uniformity, efficiency and cost effectiveness - rationalized commitments that in their technical formalism exclude questions of ethics, social value, or the public good from the start. The Merton P. Stoltz Professor of the Social Sciences and economist Glenn Loury has spoken to the limits of social-scientific inquiry in this instance: "Science may be necessary, but it is certain to be insufficient here.... [N]o cost-benefit analysis of our world-historic prison build-up over the past 35 years is possible without specifying how one should reckon in the calculation the pain being imposed on the persons imprisoned, their families and their communities." Tragically, the influence of the law-and-order obsession that drives the mass incarceration experiment extends well beyond post-secondary education.

The war on crime also fundamentally altered American public school education as well as teacher training and programs in school administration offered by colleges of education across the nation. The Safe Schools Act of 1994 was patterned, revealingly, after the landmark 1968 Omnibus Crime Control and Safe Streets Act, as Jonathan Simon observes in his study "Governing Through Crime," through which Congress "appropriated significant new funds, conditioning eligibility for this funding on the adoption by states and local school districts of techniques of knowledge and power calculated to focus more governance attention and resources on crime in schools, while assuring a more rapid and punitive response toward it."(xxiii) To qualify for federal money under the Safe Schools Act, schools must demonstrate that they have a serious problem with crime, violence and student discipline, as well as strategies for resolving it. School administrators are thus required to develop their own forms of data collection about crime, as well as assess what kinds of incidents constitute criminal activity - under conditions that provide every incentive to make such judgments as broad and expansive as possible. Moreover, effective measures and techniques for dealing with the problem of school crime, which Simon calls "penal pedagogies" because they have been lifted directly from prison settings - zero-tolerance policies, the implementation of school uniforms, in-school detentions, and the like.(xxiv) The result, notes Simon, is total transformation of what now constitutes effective school reform. Whereas the ideals of racial equality and racial justice once generated massive intellectual (if not quite financial) investment in school integration and modernization, the problem of crime and crime prevention has now "recast much of the form and substance of schools" nationwide.(xxv) As in prison settings, youth marginalized by race and class are primarily targeted by the new zero-tolerance policies. Simon's conclusion ominously highlights the degree to which the intellectual energies that fuel public policy are increasingly operationalized in the interests of disposing of problem populations:

If schools today are again coming to seem more and more like prisons, it is not because of a renewed faith in the capacity of disciplinary methods. Indeed, prisons and schools increasingly deny their capacity to do much more than sort and warehouse people. What they share instead is the institutional imperative that crime is simultaneously the most important problem they have to deal with and a reality whose "existence" - as defined by the federally imposed edict of ever-expanding data collection - is precisely what allows these institutions to maintain and expand themselves in perpetuity.(xxvi)

Simon's conclusions about the new role of public schools share much in common with Waquant's troubling observations about the new functionality of prisons - both institutions are increasingly designed not to educate or rehabilitate youth and adults in need, but to warehouse marginalized populations who are understood to have no meaningful role to perform in society. As depraved as that finding is, even more disturbing is that such transformation emerges not - or not wholly - from a place of thoughtlessness nor political extremism, but on the contrary, from the rational, efficient logic currently proffered by our educational institutions.(xxvii)

These institutional changes also reflect and extend changes in collective consciousness. They reveal a shift in what David Garland had called the "criminological episteme," to refer to how sociologists, criminologists and lay people have come to think about criminality, the individuals who commit crimes and forms of socially appropriate response. If there was a central explanatory theme to understanding criminality in the mid-century era of the social welfare state, it was one of social deprivation. Individuals committed crime because they were deprived of a meaningful education, proper family socialization, viable job opportunities or appropriate medical treatment for an abnormal psychological disposition. Solutions to the problem of crime, accordingly, lay in individualized rehabilitative treatment, support for families and in funding for social reforms the sought to improve education and job creation. In contrast, current understandings of crime reject this view in favor of a much darker vision of the human condition, one that is in keeping with the neoliberal repudiation of social safety nets and protections and its attachment to neo-Darwinian market competition and hyper-individualism. Contemporary criminologists have come increasingly to view "crime as a normal, routine, commonplace aspect of modern society, committed by individuals who are ... perfectly normal" where "normal" now presupposes individuals who are highly attracted to self-serving, anti-social and criminal behavior unless inhibited from doing so by robust and effective controls.(xxviii) And just as comprehensively, the common sense of incarceration shifted from an emphasis on correction to one of incapacitation and control, from rehabilitation to one of punishment and revenge.

IV.

What Canadians must decide in the days and years ahead is what kind of people they want to be, what mode of governance they want to support, what kind of society they want to emulate, what kind of future they want to create for their children. The lessons of the law-and-order regime in the US reveal a society deeply transformed by aggressive and abusive get-tough policies that, after 40 years, gave them no security; no safety; no peace; and for more and more of its citizens, no dignity. If the mid-century social welfare state was concerned, at least in theory, with citizens' social well-being in its performance of certain care-taking functions, including the funding of education, health care and public housing - a set of commitments the civil rights struggles of the 1960s was meant to expand to all citizens - the neoliberal law-and-order state that succeeded it has only grown more intrusive and more repressive, as resources drained from social safety nets were reallocated toward the police, military, prisons, border patrol, intelligence agencies and an expanding homeland security apparatus. And as fear overtook reason, personal safety trumped collective security - all the better for those who manipulated world markets and induced volatility into every aspect of daily life, who drained public coffers in an accumulation of obscene wealth, and who sought to inflame the apparently antagonistic interests of disconnected individuals, to the detriment of the vast majority of humanity.

This vast and violent apparatus eventually overtook the very site and role of responsible governance, exacting in its near-death blow to democracy the most severe political, moral and ethical costs. And the consequences of these decisions have been felt not only nationally, but globally, as failed economic policy and unbridled corporate greed led to global financial catastrophe. As Canadians ponder the choices before them, they would do well to recall the words of the late Jack Layton in his last letter to his fellow citizens:

There are great challenges before you, from the overwhelming nature of climate change to the unfairness of an economy that excludes so many of you from our collective wealth, and the changes necessary to build a more inclusive and generous Canada. I believe in you. Your energy, your vision, your passion for justice are exactly what this country needs today.[xxix]

There are indeed great challenges before us. And our first priority must be to affirm that governing through crime is no substitute for governing through democracy, that a society committed to the justice, equality and freedom is far superior to one premised on prisons, punishment and a culture of cruelty.

Footnotes:

i. Cited in Editorial by CBC News, "Tory Crime Bill Cracks Down on Drug, Sex Offences" Sept. 20, 2011. Available here.

ii. Mauer, Race to Incarcerate, NY: The New Press, 1999. p. 19.

iii. The Sentencing Project offers the most recent rates of US incarceration. See here.

iv. See "Elderly Inmates Swell Prisons, Driving up Health Care Costs," USA Today, February 28, 2004. Available here. And Stephanie Chen, "Prison Health-Care Costs Rise as Inmates Grow Older and Sicker" CNN Justice, November 13, 2009 Available here.

v. Available here.

vi. For a comprehensive analysis of what is and is not counted in the costs of mass incarceration, see Steven Donzinger, Ed. "The Real War on Crime: The Report of the National Criminal Justice Commission" (NY: HarperCollins). When the report was published in 1996, the average cost of a new prison cell was $54,000, but interest paid on the money typically borrowed increased the cost of that cell to over $100,000 (p. 49). Of course, accounting figures are now 25 years old, so that to extrapolate into the present one would have to take into consideration not only current rates of inflation, but also the cost of borrowing in this most austere lending climate. Nonetheless, itis the pattern of systemic exclusion from costing that remains particularly illuminating.

vii. Comparable estimates by Statistics Canada indicate that the cost of incarcerating a federal female in 2004-2005 prisoner fell between $150,000 and $200,000, whereas the cost of incarcerating a federal male prisoner was roughly $87,665. The disparity between spending in the US and Canada per prisoner has likely more to do with differences in actual costing - where food and medicine are included in the one context, but not in the other - rather than significantly better conditions in the North.

viii. "Tuberculosis in prisons" World Health Organization. Available here.

ix. See "Drug Use, HIV, and the Criminal Justice System." Published by the Center For Disease Control. Available here.

x. Michael Meranze, "California's Crisis: Coming to a Neighborhood Near You" Huffington Post. Posted August 24, 2009. Available here.

xi. See "Rough Justice in America: Too Many Laws, Too Many Prisoners" The Economist, July 24, 2010, print edition. Available here.

xii. Clear, Todd R. "The Problem with 'Addition by Subtraction': The Prison-Crime Relationship in Low-Income Communities, in Invisible Punishment: The Collateral Consequences of Mass Imprisonment," ed. Mark Mauer and Meda Chesney-Lind. NY: The New Press: 2002. p. 181-193.

xiii. Clear, p. 193.

xiv. Cited in Mark Mauer, "Race to Incarcerate," p. 67.

xv. See, Marc Mauer, "Race to Incarcerate," p. 181.

xvi. See "Facts & Statistics" posted on prisonjustice.ca sourced from Juristat, Statistics Canada (2005-6). Updated August 2008. Available here.

xvii. Loic Wacquant, "From Slavery to Mass Incarceration" New Left Review 13 Jan-Feb. 2002. Available here.

xviii. For an analysis of the "hidden punishments" of incarceration, see "Invisible Punishment," Ed. Mauer and Chesney-Lind.

xix. Hagopian, "The Dog Eats its Tail," unpaginated electronic work.

xx. Ruth Wilson Gilmore, "Golden Gulags: Prison, Surplus, Crisis, and Opposition in Globalizing California," Berkeley: University of California Press, 2007. p. 88.

xxi. Ruth Wilson Gilmore, "Golden Gulags," p. 118. (Emphasis added.)

xxii. Ibid.

xxiii. Simon, "Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear," Oxford: Oxford University Press, 2007. p. 216.

xxiv. Zero tolerance policies have already found their way to Toronto Area Public Schools and have been at the center of much controversy. For a brilliant analysis of their impact, see Jennifer Fisher, "'The Walking Wounded': Youth, Public Education, and the Turn to Precarious Pedagogy," The Review of Education, Pedagogy, and Cultural Studies. 33.5. forthcoming, fall 2011.

xxv. Simon, "Governing through Crime," 209.

xxvi. Simon, "Governing through Crime," p. 231.

xxvii. I have discussed at some length what I understand to be the consequences of such unambiguous institutional preferences for putatively objective, nonpolitical, quantifiable and empirical data collection as against qualitative and critical research in "Between Race and Reason: Violence, Intellectual Responsibility and the University to Come," Stanford University Press, 2010. p. 7-9.

xxviii. David Garland, "The Culture of Control: Crime and Social Order in Contemporary Society," Chicago: University of Chicago Press, 2001. p. 15.

xxix. "Jack Layton's Last Letter to Canadians." CBC.ca. Posted August 22, 2011. Available here.

Susan Searls Giroux

Susan Searls Giroux is associate dean of humanities and an associate professor of English and cultural studies at McMaster University. Her most recent book, "Between Race and Reason: Violence, Intellectual Responsibility, and the University to Come" (Stanford UP), won the prestigious Gary A. Olson Award for Best Book Published in Rhetoric and Cultural Studies in 2010. She has also coauthored, with Henry Giroux, "Take Back Higher Education," and, with Jeffrey Nealon, "The Theory Toolbox: Critical Concepts for the Humanities, Arts, & Social Sciences Second Edition," a revised and expanded second edition of which appeared in summer 2011. She has published numerous articles in Third Text, Social Identities, The CLR James Journal, JAC, Works and Days, Cultural Critique, College Literature and Tikkun.


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