University of Chicago law professor Bernard Harcourt has this really amazing post over at Balkin about the lessons that can be learned from the decline in mental institutionalization and how they can be applied to the de-incarceration movement. He starts by pointing out that in 1963 President Kennedy gave this speech:
If we launch a broad new mental health program now, it will be possible within a decade or two to reduce the number of patients now under custodial care by 50 percent or more. Many more mentally ill can be helped to remain in their homes without hardship to themselves or their families. Those who are hospitalized can be helped to return to their own communities… Central to a new mental health program is comprehensive community care. Merely pouring Federal funds into a continuation of the outmoded type of institutional care which now prevails would make little difference.
Harcourt then makes the point explicit: “This country has deinstitutionalized before.” Drawing from a recent working paper, he outlines three things that can be learned from this previous deinstitutionalization and applied to the movement to get some sanity around our prison populations (my bold):
What then can we learn from deinstitutionalization in the 1960s that could help us decarcerate in a successful manner? The place to begin is with the three factors that most influenced deinstitutionalization: first, the development of federal social welfare programs (such as Medicaid and Medicare) that created financial incentives for states to channel care for the mentally ill from state mental hospitals to community-based outpatient facilities; second, the development and use of psychiatric medicines as treatment for even severe mental illness that not only allowed patients to live on their own, but transformed the way we thought about mental illness; and third, the increased understanding and sympathy for persons with mental illness resulting from changed perceptions catalyzed in part by World War II, impact litigation, and critical attention to the plight of patients in documentaries and films like Titicut Follies and One Flew Over the Cuckoo’s Nest….
These factors suggest several avenues for change today. First, federal leadership should be encouraged to create funding incentives for diversionary and reentry programs and other ways of reintegrating offenders (or avoiding incarceration from the outset) that would give states a financial motive to move prisoners out of the penitentiary and into community-based facilities and programs. The key here is to give states an economic and fiscal incentive to move convicts out of state prisons and into non-custodial programs on the model of Medicaid reimbursement for outpatient community mental health treatment….
Second, regarding the use of prescribed medications, there is a real need for improved psychiatric care and treatment of prison inmates….Two other ideas in the same vein. The increased use of GPS monitoring and other biometric monitoring could serve as substitutes to incarceration as well. Electronic bracelets, telephone monitoring, and other forms of home supervision are an attractive alternative for certain types of offenders. Moreover, a move toward the legalization or medicalization of lesser controlled substances would also have a direct impact on reducing our prison populations, not only because of decriminalization but also by eliminating the drug trade and its attendant violence.
Third, high-profile impact litigation regarding prison conditions, the paucity of mental health treatment, and prison overcrowding, as well as documentaries of prison life along the lines of Frederick Wiseman’s 1967 film, Titicut Follies, should form part of a larger strategy to shift the public perception of those persons incarcerated. Increased public awareness of the reality of prison life would contribute to greater willingness to support federal policies aimed at helping reduce our prison populations. In the words of Justice Sonia Sotomayor at the oral argument on the California prison overcrowding case, “When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you’re going to deliver care that is going to be adequate?”
All of these approaches may well involve Faustian bargains, and the dangers associated with each are apparent. 1960s deinstitutionalization had its own dark sides, including the increased racial imbalance of the mental hospital population as the asylums were being emptied, as well as the problem of transinstitutionalization. Some solutions, such as the use of risk assessment, may actually worsen the problems of race. It would be absolutely crucial, in any effort to reduce mass incarceration, to avoid both the further racialization of the prison population and the transinstitutionalization of prisoners into other equally problematic institutions, such as homeless shelters or the kind of large mental institutions depicted, precisely, in documentaries like Titicut Follies.
Read the whole thing. The third part, the call to continue to make a case why mass imprisonment is a a terrible way to deal with serious problems, is a very important part. Because any other pathway for reform can easily end up preserving the worst parts of the original. It’s even clearer when you consider two recent events surrounding prison reform: the conservative movement on prison reform as budget reform, and Mark Kleiman’s framework for understanding what happens when Brute Force fails.
Conservatives and Incarceration
Since he is someone who knows which way the wind blows, it is telling that Grover Norquist wrote a recent National Review editorial calling for rethinking mass incarceration under the subtitle: “Let’s stand for limited government, federal accountability, and reduced spending.” More and more conservatives are looking at how out of control mass incarceration has gotten in the past decades, and many liberals are hoping to have a bipartisan effort here. This is going to be harder than it looks, as mass incarceration is central to conservative thought. And also because conservatives have one main goal here: reducing state-level spending.
Indiana governor Mitch Daniels is worth watching here. The part that simply spends less per inmate is going to be an easy sell. Daniels can brag that his government is “housing 38% more prisoners without having built one additional cell. At a per day cost that is down around 30%, by the way.” Or that his state government has outsourced “prison food to Aramark, cutting the cost from $1.43 a meal to 99 cents in the process.”
This isn’t a complex business model. There’s not going to be a lot of fat to trim off the budget other than breaking public unions and hitting their pensions, or fire-selling off the prison to private interests. There’s something unique about our age where our meritocratic consultant elite is off making excel PivotTables on how to optimize the exact minimum you can spend on feeding captive populations. However corporate efficiency reform is not the needed reforms geared towards human dignity, checking the violence of the state and reducing crime in a smart way.
When it comes to actually reducing the prison population, which is where all the savings is really going to be, Daniels is hitting major problems within the DA’s office and among the conservative rank-and-file. This quote from Indiana’s Sen. Sue Glick, R-LaGrange, a member of the Senate’s Corrections, Criminal and Civil Matters Committee, is telling: “We just don’t accept the idea that because the Department of Correction has a bed problem that we should be releasing serious felons back on the street.”
Without making the case for why mass incarceration is bad in and of itself, not just as a budgeting issue, it’s going to be harder to move this. During times of budget stress you see an increase in fear among the general population. So any desire to use the state’s balance sheet as an argument for changing prison policy is going to be offset by an increase in an xenophobia and retrenchment that expresses itself most forcibly in the language of crime control.
When Brute Force Fails
The other development is many liberal wonks are adopting the conceptual framework of Mark Kleiman’s When Brute Force Fails as a policy agenda. Aaron Schwartz has a good review of the book here. The book is amazing. It should be required reading for anyone interested in public policy, the arguments about incarceration, or game theory.
It talks about a lot of things, but a short way of describing it is that we need to change the term structure of the way punishment is exercised by the state. Instead of uncertain, harsh punishments, there should be more certain, weaker punishments. The big example he uses is that we should create a more expansive and punitive parole system in order to combat recidivism, which will reduce our need for long prison sentences.
The thing that worries me about the plan, like the conservative plan to cut prison budgets, is that it doesn’t necessitate de-incarceration. Let’s talk about Broken Windows for a second. There’s a way of describing Broken Windows as the criminalization and aggressive attack on pre-criminal activities like loitering or petty drug use. You can picture a wonk saying “by aggressively criminalizing early, petty activities we can deter later activities and thus have a smaller prison system.” And you can picture the system saying back “yes, we can criminalize petty early activities and have a massive prison system.” The wonk will yell “hey – that’s not what I said!” but it’ll be too late.
One conclusion of the Brute Force Fails approach is that you can have a smaller prison system through a more aggressive parole system. It is not hard to imagine the system saying “good idea, let’s have both, a huge prison system with an aggressive parole system.” After all these can work as compliments instead of substitutes: the surveillance, degradation and control associated with long-term incarceration will prep a person for a more aggressive monitoring after incarceration.
For the theory to work well, it requires a move away from thinking of prisons as a benefit and instead of as a cost, a dangerous, wasteful and ineffective approach that comes with mass devastation for communities. But that brings us back to Harcourt’s point: we need to continue to move public opinion on why our current system is the worst of all worlds.