2019

1. Journal of Student Research (2019)
Research Article
Between Money, Chains, and the False Perception of Freedom, Am I a
Criminal or Not?: How Private Interests Encourage The Mass
Incarceration of People of Color and How Reforms Can Be
Implemented
Keziah Rezaey
The United States is currently experiencing an era of mass incarceration in which people of color
are incarcerated at disproportionate rates. The proportion at which American citizens are
incarcerated rivals no other countries in the world, despite national and state crime rates steadily
decreasing over the years. In addition, the role of businesses and government contracting has
further muddled the issue, which is already complicated by its ties to social and economic
disadvantages within communities of color. Recently, there has been a push to introduce more
criminal justice reforms, however, no effective changes have been observed. This essay will
explain the phenomenon of mass incarceration and its societal ramifications in the context of the
United States, discuss it with respect to the privatization of prisons, address opposing positions,
and explore possible and realistic reforms.
Keywords: mass incarceration, private prisons, industrial prison complex, race and punishment
Introduction
Mass incarceration is not to be
confused with overcriminalization, which
simply looks at the rate of incarceration in
the United States. Mass incarceration is a
term that is more encompassing, by
considering both the role and implications of
race and gender in the criminal justice
system while examining the statistics of the
number of people of color incarcerated in
the United States. Instead, for the purposes
of this essay, mass incarceration can be
defined as overcriminalization of
disadvantaged groups in which social and
economic inequalities exist at
population-wide levels. This definition can
be specified to imply that the government is
aware “that criminal law is doing ill by
marginalizing populations and exacerbating
troubling power dynamics and distributional
inequities” (Levin 263). This is also
connected to fundamental differences in
opportunities provided to people of color in
the educational and job sector.
The terms “law and order” and “war
on drugs” were first coined by President
Nixon in 1971. His administration
introduced policies that enforced minimum
sentencing and increased drug policing in
communities of color. John Ehrlichman, a
former Nixon staff member, admitted on
tape that the administration knew that these
policies specifically targeted people of color,
stating:
The Nixon campaign…had two
enemies: the antiwar left and black
people. You understand what I’m
saying. We knew we couldn’t make
it illegal to be either against the war
or black, but by getting the public to
associate the hippies with marijuana
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and blacks with heroin, and then
criminalizing both heavily, we could
disrupt those communities. We could
arrest their leaders, raid their homes,
break up their meetings, and vilify
them night after night on the evening
news. Did we know we were lying
about the drugs? Of course we did.
(Drug Policy Alliance)
Reagan contributed to these disturbing
legislative trends by broadening the “war on
drugs” with zero-tolerance policies. Bill
Clinton followed suit, not wanting to look
soft on crime. In addition, the media vilified
people of color, by choosing racialized
examples of people in prison to characterize
entire communities (DuVernay). From this
point onward, the United States saw an
exponential growth of people in prison and
the era of mass incarceration had begun.
In the United States, “one out of four
human beings with their hands on bars,
shackled in the world, are locked up here, in
the land of the free” (DuVernay). In
addition, people of color are largely
overrepresented in prisons despite making
up a minority of the United States. Latinos
comprise of 27% of the prison population in
the United States while African Americans
make up 50% despite being 16% and 14% of
the nation’s population respectively (Aguilar
17). If justice was truly blind, this disparity
in disproportionate realities and
representations would not exist.
By itself, mass incarceration is
already a highly nuanced issue, but it is
further complicated when the role of private
prisons is considered. In an era of mass
incarceration in the United States, we see the
troubling development of an increasing
privatized role in prisons and immigration
detention centers, creating an industrial
prison complex. In this economic
phenomenon, the government contracts
private businesses to run prisons and
immigrant detention centers, creating a
monetary incentive to imprison and detain
people.
The business role of prisons revolves
around the fact that society has been built to
expect that people from communities of
color are the primary perpetrators of crime
and this idea, formed by select, racialized
examples, has further led to stereotyping of
communities. In turn, this has justified the
privatization of prisons, which does harm at
the prisoners’ expense. The cycle of mass
incarceration is damaging to communities of
color, and the role of money intensifies this
damage by creating incentive for the
government to criminalize their own
citizens. Monetary interests in the criminal
justice system need to be reexamined at a
national level and reforms need to be
introduced to combat the injustice of the
overcriminalization of communities of color.
Mass Incarceration at an Individual and
Community Scope
In the United States, when one is
labeled as a criminal or convict and they
come from communities of color, this
heavily implies the existence of troubling
socio-economic conditions present for the
individual in their community. These
conditions have culminated from decades of
legislative and societal oppression from the
American government. Often, the
environment that these individuals come
from is not considered when the umbrella
term “criminal” is applied to them. The
social stigma that comes with
criminalization is mentally damaging at both
an individual and community level. This is,
however, after the fact that the individual
has already experienced trauma, bullying,
and racial profiling in their own
communities and in the courts.
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At a community-level, the
byproducts of incarceration affect each
individual, even if the individual has not or
will never be incarcerated. This is tied to
racial profiling, increased policing and
police brutality, which are very much real
threats in communities of color. People have
been wrongly sent to jail or killed on the
basis that they fit the description of what a
“criminal” looks like. Individuals in
communities of color need to be aware of
prevailing stereotypes and how at any
moment, they may be perceived as
dangerous, solely on the basis of skin. The
incarceration of individuals introduces
“collateral consequences that accrue to
imprisoned people even after their sentences
are completed…when the number of felons
removed from a community is ‘too high,’ it
may actually harm the places where they use
to live” (Crutchfield and Weeks 1). This
does not imply that communities do not
want criminals removed, but instead, that
they recognize that what constitutes a
“criminal” in their community
fundamentally differs from a “criminal” in
communities of privilege.
Plea deals, often unknowingly to the
American public, are a tool of mass
incarceration. In courts, they are presented
by prosecutors like a once-in-a-lifetime
chance or a limited deal where one must act
now or lose out. They often persuade the
accused to go against their own truth and
“defendants, even if they proclaim their
innocence, are often pressured to plead
guilty; go to trial, they are told, and you will
likely get a much longer sentence” (Menta).
Discouraged individuals accept plea deals
because they are aware that the criminal
justice system is biased against their very
existence. This means that prisons are filled
with people who did not commit the crimes
they are accused of.
If found guilty, within the prison
system, people are exposed to “authoritarian
regimes, violence, disease, and technologies
of seclusion that produce severe mental
instability” (Davis 10). Kalief Browder was
sixteen years old when he was accused of
robbery. His family could not afford to pay
the three thousand dollar bail. When
Browder insisted on his innocence and
refused the plea deal, they punished him
with more jail time than what was initially
offered (Meiser). While in jail, when he was
not beaten by guards and other prisoners, he
was in solitary confinement. Three years
later, his robbery charges were dropped due
to lack of evidence. He had been accused of
robbing a backpack. Browder was released
from prison without ever being formally
charged or convicted of a crime. The toll of
prison was taxing on his mental health and
at twenty-two years old, two years after he
had been released, he committed suicide
(DuVernay). Unfortunately, Browder’s story
is not an isolated case and is reflective of
current criminal justice practices.
Imprisonment in the United States continues
to stand as an institution of punishment
beyond its lawful jurisdiction, where
prisoners are physically and mentally
abused, and communities are criminalized
and policed as a whole.
Industrial Prison Complex and the Role
of the Government
The industrial prison complex is the
phenomenon in which private interests are
tied to the government legislation because of
the government’s role in contracting private
organizations to run prisons. Private prisons
in the United States are almost entirely for
profit. From the building of these prisons to
services provided within prisons,
commodities are monetized so as to make
profit. There even an exists an sub-industry
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in which handcuffs, fences, and drug
detectors are sold at a premium for
wholesale. Communication companies
charge calls per minute at higher rates
within prisons than outside of them
(Goldberg and Evans 7). Corrections
Corporation of America (CCA) is the
government’s largest contractor, running the
most private prisons in the United States
(DuVernay). They had a net profit of 1.77
billion dollars in 2017 (Vittert). The
problematic nature of the industrial prison
complex arises from the intersection of
private interests, legislation, and profit
which yields negative consequences for
those imprisoned by affecting their quality
of life during their time in prison. In
addition, the monetization of jail has created
incentive for the government to imprison
people because they are stipulated to pay for
the contracting of private prisons, even if
they are not filled.
This phenomenon was first
witnessed at the end of slavery after the
Civil War. Slaves were the primary laborers
in the South and once they were
emancipated, the Southern economy was
stagnant and depressed. A loophole in the
Thirteenth Amendment stated that slavery
was to be prohibited, except if one was a
criminal. This was immediately exploited
“After the Civil War, African Americans
were arrested in en mass … [in the] nation’s
first prison boom … to provide labor to
rebuild the economy of the South”. Today,
prisoners work without pay in sweatshop
seatings, creating consumer items available
in retail stores like JCPenney (DuVernay).
Similarly, with the recent, devastating
California wildfires, the California
Department of Corrections and
Rehabilitation tweeted “Today, more than
2,000 volunteer inmate firefighters,
including 58 youth offenders, are battling
wildfire flames throughout CA”
(@CACorrections). In addition to fighting
fires, inmates are relegated to other
undesirable jobs, such as farming
(DuVernay). The government largely
regards these inmates as disposable pawns.
In the discussion of private prisons
as a business, the role of lobbying groups
cannot be ignored. Lobbying groups act as
the bridge between the government and
private prison contractors. By drafting and
introducing legislation, these groups help
contribute to a framework in the legal
system that targets people of color, leading
higher rates of incarceration. The American
Legislative Exchange Council (ALEC) has
partnered with multiple representatives
Republican party. The organization drafted
SB-1070, which permitted police in Arizona
to stop and detain people on the basis that
they look like an immigrant. In addition,
they proposed the Stand-Your-Ground law
that allows people to defend themselves to
the point of force if they feel or perceived to
be threatened. It is this law that allowed
George Zimmerman to be acquitted of
charges for the murder of Trayvon Martin,
whom he had shot and killed (DuVernay). At
the young age of seventeen, Martin had
already been a victim of harmful stereotypes
and racial profiling. Meanwhile, his white
killer, who had carried a gun, walked free.
Martin’s story is another that depicts how a
justice system has failed and turned on its
own people by criminalizing them through
legislation.
Opposition to Criminal Justice Reforms
The overcriminalization of people of
color is a byproduct of historic racial
structures that have largely oppressed
non-white Americans from the beginning of
country’s existence. How the system has
encouraged this domination has changed
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over time. Similarly, justifications have
evolved as well. In the beginning, the use of
slave labor was dependent on the fabricated
fact that Africans were meant to be
subjugated due to their mental inferiority.
With the abolishment of slavery, segregation
was swiftly implemented with similar logic.
Mixing of race was discouraged and
schools, restaurants, and other public spaces
were designated by skin tone. In modern
times, oppression has become more subtle
under the guise of “keeping criminals out of
the streets”, while failing to mention that
most supposed criminals within the system
largely come from communities of color.
Many argue that it is from these
communities of color that the highest crime
rates are observed. They do not consider,
however, the nature of these crimes and the
use of minimum sentencing. Most crimes
from communities of color are non-violent,
drug convictions (Menta). This is often seen
as the only window to escaping the
circumstances presented to them by nature
of discrimination and economic
opportunities. Stereotyping enforces this
twisted justification with the “omnipresent
media blitz about serial killers, missing
children, and ‘random violence’ feed[ing]
our fear. In reality, however, most of the
‘criminals’ we lock up are poor people who
commit nonviolent crimes out of economic
need”. In the state of California, the most
common convictions that lead to jail time
included possession of controlled
substances, possession of controlled
substances for sale, and robbery (Goldberg
and Evans 7).
In addition, “black offenders were 75
percent more likely to face a charge carrying
a mandatory minimum sentence than a white
offender who committed the same crime”
(Menta). The use of minimum sentences for
drug convictions are shocking, especially
when a white man like Brock Turner was
only in jail for three months after being
found guilty of raping a woman, while
Cynthia Shank, an African-American
woman, was sentenced to fifteen years for
merely possessing marijuana (Menta).
Similarly, when it pertains to drug
convictions, “conviction for crack selling
(more heavily sold and used by people of
color) result[ed] in a sentence 100 times
more severe than for selling the same
amount of powder cocaine (more heavily
sold and used by whites)” (Crutchfield and
Weeks 47). One cannot ignore biases of the
criminal justice system and how harsher
punishments are enforced when a person of
color is sitting inside the courtroom, often
exaggerating crime rates in communities of
color.
Another argument that is often
wide-spread: why does it matter if a prison
is private if it still holds prisoners? One must
consider the ethical dilemmas that exist
when a system of justice is largely tied to
money. It is very difficult to have fair
systems in place if money is involved. This
is because money is one of the determinants
of socio-economic classification. Cash bail,
which allows one to leave prison while
waiting for their trial, is often inaccessible
and sometimes impossible for people from
communities of color who often come from
lower socio-economic communities.
Individuals with accrued wealth have the
privilege of spending little to no time in jail.
Meanwhile, most people of color often do
not have the means to hire established and
competent lawyers, often left with public
prosecutors who may have little experience.
A criminal justice system cannot be truly
impartial and unbiased if it encourages the
barriers built by monetary interests.
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How to Combat Private Prisons and Mass
Incarceration
To deconstruct a racist and biased
justice system may seem daunting, but it is
not impossible. In fact, in December of
2018, Congress passed the bipartisan First
Step Act that would largely undo the
policies implemented during the “age of law
and order” introduced by Nixon, Reagan and
Clinton. The law would “expand job training
and other programming aimed at reducing
recidivism rates among federal prisoners. It
also expands early-release programs and
modifies sentencing laws, including
mandatory minimum sentences for
nonviolent drug offenders, to more equitably
punish drug offenders” (Fandos). Both
political parties believed that this legislation
was timely, with President Trump (who has
often clashed with Democrats) tweeting
“This will keep our communities safer, and
provide hope and a second chance, to those
who earn it. In addition to everything else,
billions of dollars will be saved. I look
forward to signing this into law!”
(@realDonaldTrump).
While this is a step in the right
direction, it is still not enough. At
face-value, the legislation seems
encompassing of necessary reforms, but it
simply is a watered-down version of an
earlier bill that Obama had proposed during
his time as president (Fondos). With the
existence of private prisons, “the more
incarcerates who remain in the system, the
more lucrative the enterprise
becomes…rehabilitation and educational
services do not generally factor…when
compared to construction fees, management
salaries, and employee wages” (Ward, et al.
36). In addition, violence and intimidation
by guards is still extremely widespread. This
raises the question of “who gets the jobs of
spending time with these [prisoners].
Otherwise, we’d want social workers and
teachers...people with understanding of
human behavior” (DuVernay). Many argue
that only the systemic nature of prisons
needs be reformed, however, the attitude
towards prisoners needs to be changed first
and foremost. It is apparent that much still
needs to be done.
To continue to achieve this necessary
reform of societal attitudes, one can examine
the various prison models around the world.
In particular, American prisons can be
modeled after the Nordic European
countries which have the lowest reoffending
crime rates in the world. In the Nordic
countries, prisons are smaller and located in
local communities so that prisoners are able
to see their family frequently. Prisoners are
initially placed into a closed prison with
cells, yet, it is still not as isolated as
American prisons. There are common rooms
with lounges and communal kitchens.
Towards the end of their sentences,
prisoners are moved to open prisons where
“offenders [are allowed] more freedoms,
more relaxed surroundings, fewer security
measures, and more programs aimed at
societal reintegration” (Ward, et al. 39). In
the Nordic prison model, prisoners are
treated humanely with the focus placed on
rehabilitation. Classes are offered to teach
necessary skills that help them reintegrate
into society. Compare with the United
States, where prisoners are often placed in
small, isolated cells. During free-time,
prisoners are exposed to intimidation and
embarrassment tactics by guards and other
prisoners, which takes a toll on their mental
health.
In addition, the perception of prisons
in the United States and Nordic countries
vary drastically, reflecting how public
perception can shape legislation and policy.
In the United States, being a prison guard
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can be seen as a dangerous or even
undesirable occupation, whereas in Nordic
countries “working as a prison guard is a
desirable vocation, which is very
competitive and selective” (Ward, et al. 39).
How Nordic society views prisoners has an
effect on the more humanistic nature of
prisons within these countries. In addition,
cost is not excuse in that if the government
establishes prisons modeled after the Nordic
countries, there will be no need for an
expansive prison system that holds convicts
longer than necessary. Similarly, if offenders
are effectively rehabilitated, there is little to
no chance they will enter prison again.
Essentially, prisons need to be changed to
uphold the dignity of the individual. By
doing this, effective systemic legislative
reforms will follow naturally.
Conclusion
Mass incarceration in the United
States is nuanced issue that is exacerbated
by the involvement of private corporations
and lobbying groups with government
legislation. These organizations help
contribute to the problematic notion that
people of color largely are the perpetrators
of crime in American society, which justifies
the unlawful expansion of the criminal
justice system. While reforms have been
introduced to an extent, the prison system
must be reformed from the bottom-up so as
to preserve the dignity of the prisoners who
are often mentally and physically abused in
their detainment. In the United States,
physical chains are traded for psychological
ones.
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