Why Do We Tolerate a Massive Prison System That Produces 70% Recidivism Rates?

day-in-courtIn Part 1 of this two-part Q&A, UC Berkeley Law Professor Jonathan Simon talked about criminal sentencing and parole as practiced today in California. He concludes here by discussing the social and fiscal impacts of our approach to crime and punishment, the current opportunity for prison reform, and some ideas for meaningful change.

Q. California’s budget crisis, together with the federal judiciary concern about California prison overcrowding, have focused critical attention on the state’s massive penal system. In light of these developments, what are the prospects for meaningful reform?

A. This is a very exciting moment. Two seemingly independent but powerful forces are opening the policy window. One, as you say, is the budget situation: over recent decades, Californians have seen the portion of the state discretionary budget devoted to Corrections grow from below three percent in 1980 to almost 10 percent today. During relatively prosperous times, this high cost was not very visible. But now, with our epic budget deficit requiring service cuts all over the state, the more than $8.5 billion annually that the state spends to maintain its giant adult correctional system is becoming more of a problem.

Simultaneously, we have the Plata-Coleman mega litigation. Five separate lawsuits have clicked together into one monster lawsuit about prison overcrowding, and a three-judge panel has suggested that only a reduction in the population of California prisons can make the constitutional violations remediable. These federal judges issued a preliminary ruling, earlier this year; in it they suggest they will order the state to reduce its prison population by 20,000 to 50,000 (although they probably won’t tell the state how it has to achieve that reduction.)

These developments seem to create an enormous opportunity for change. But for how long and to what end? Let’s say the judges order California to reduce the prison population by even as many as 30,000 or 40,000. It might be possible to handle that, partly by sending California prisoners to private prisons in other states. (It might require changing the law — but that could be done.) And surely there would be an effort to keep some parolees from going back to prison, for at least awhile, to comply with the court’s ruling.

But my fear is that in the next boom cycle (which we tend to have in California), the basic lie that underlies our system — that the status quo, our current penal process, is making us safer — will remain the powerful force it has been in California politics. And as a result, 10, 15 years from now we’ll have a bigger prison system than ever, maybe some of it located in Mexico or Arizona or someplace where it’s cheaper to run prisons.

Unless we confront this basic story/promise/lie that’s been sold so effectively to Californians over the last three decades, everything is rearranging deck chairs on the Titanic. We’re still stuck with this colossal penal system that is starving us fiscally, when there are all these other things we need to fund.

Q. Is racism a strong driver behind the ‘ruling through crime’ mentality?

A. Yes. Some would say “Look, the civil rights movement broke down a traditional system of racial domination associated with Jim Crow in the South and with ghetto police enforcement in the North. And mass imprisonment, governing through crime, became replacement tools, basically, to maintain a racially unequal and separate society. I think there’s a lot to that argument.

But what has also developed in our society is a mandate for crime control that clearly has won a huge constituency, across racial and ideological divides. Think of the federal sentencing guidelines for crack vs. powder cocaine — where you have to possess 500 grams of powder cocaine, but only five grams for crack cocaine, to get a mandatory minimum sentence of five years. Today this is exhibit #1 in many people’s minds of racial bias in our justice system — since crack cocaine is overwhelmingly associated with black users and sellers, while powder cocaine remains associated with rock stars, investment bankers, and white users generally. Yet the entire Congressional Black Caucus supported the five-gram limit for crack cocaine. The scourge of crack was hurting black neighborhoods, and tough crime laws seemed to be the way the government could respond.

Q. What criminal-justice reforms would you like to see in California?

A. The most important thing we can do is use the penal code to set firmer limits on who can be sent to prison, as opposed to being dealt with through jail or probation at the county level. Currently our law gives county-level prosecutors huge discretion to select charges that will send local criminals to state prison, where the state pays all of the costs of incarceration. This has the terrible result of producing an ever-growing state prison population and an ever-growing group of people who, having been in a California prison, are deemed permanently dangerous.

Prison should be reserved for those who pose such a threat of violence that they cannot reasonably be worked with in the community. We should actively subsidize counties (as we did in the 1970s) to keep more of their offenders in the county system — where they can remain better integrated into the families and community resources they will eventually need to engage with in order to stay crime free.

UC Berkeley Law Professor Jonathan Simon

UC Berkeley Law Professor Jonathan Simon

Beyond that, we need to revamp some of the institutions that are routinely directing people into the criminal-justice system. This is especially true of our schools, which have become gateways to criminal-justice custody through disciplinary regimes and test-based pressures to force out weaker students. Another example is our mental health system, which has been allowed to atrophy, leaving many of the untreated mentally ill on a pathway toward criminalization and incarceration. A renewed and reformed mental health system could reduce both violence and mass imprisonment in the United States.

The book I co-edited with two Berkeley colleagues, (After the War on Crime: Race, Democracy, and a New Reconstruction), elaborates on ways we could move forward from our war-on-crime approach.

Q. Talk about your blog and what you’re trying to accomplish with it.

A. Many people think that after 9/11 the war on terror became the vehicle for transforming how America was governed. But in Governing Through Crime (subtitled How the War on Crime Transformed American Democracy and Created a Culture of Fear) I argue that the war on terror has been an extension of the war on crime, which had already transformed American democracy along all the same lines. I try to show the ways in which American government, and even civil society, have been transformed and distorted by the war on crime, how the overcrowded prison is just one manifestation of this larger way of organizing our democracy.

So in my blog I keep a critical eye on the daily news and events, using the framework of “governing through crime” — this awareness that we have become trapped in ways of thinking and responding, ever since the late ’60s — to help illuminate the public dialogue.

One of my real complaints is that when we govern through crime, we sound tough, but we’re really giving everybody a break, especially government. When we say that we want government to be tough on crime, we mean that we want prison sentences to be long and the rhetoric to be sharp. But we don’t actually hold government accountable for reducing crime. If we did, we wouldn’t put up with prisons that produce 70 percent recidivism rates. We would long ago have said “Why are we building and supporting these prisons if they’re failing most of the time?” Instead we’ve been satisfied with the rhetoric of toughness, and an emotional appeal to solidarity with the victim and disparaging disdain for the offender. We’ve taken government off the hook.

Likewise, when we lock people up in prison, we’re really letting them off the hook as well. I have a friend, an activist for mothers and children of inmates, who basically argues that when you send a man to prison, he doesn’t have to take care of his kids, he doesn’t have to work, he doesn’t have to worry about the elderly in his community. You’re creating an adolescent fantasy for him, where he’s going to get strong, do bad stuff, and basically hang out with the boys. Someone’s going to feed him every day, do his laundry. It’s anything but responsibility.


I don’t expect President Obama to directly confront crime issues, because he’s so politically pragmatic. But one of the things that excites me about Obama is when he talks about a new accountability for government. In doing that, he may start weaning us of this habit of letting government off the hook. If people start demanding to know what they’re actually getting for our public investments in crime repression, I think the war on crime will become less popular.

Cathy Cockrell

Cathy Cockrell is a writer for the UC Berkeley NewsCenter. She lives in Oakland.

Republished with the author’s permission from UC Berkeley News.

See Q&A part 1: Why Parole Does Not Work in California.


  1. Eido Cohen says

    In the question, “Talk about your blog and what you’re trying to accomplish with it.”

    Par. 3 ends with “…We would long ago have said” and is then cut-off. What was supposed to be stated after that?

  2. annieR says

    The prison system is tolerated because it’s a contracted-out operation. The private interests who are invested in the private, for-profit system do not want crime reduced and do not want prisoners rehabilitated. Recall the recent case of judges who sent juveniles, without legal counsel, to for-profit detention facilities for kick-backs. This isn’t rocket-science, folks. It’s all about greed.

  3. says

    It isn’t the prisons system that causes so much recidivism, it is the fact that ex-cons have such a hard time finding any sort of worthwhile employment after wards because of employers reliance on cheap easily obtainable criminal records. While I am not saying companies don’t have a right to check into the background of potential employees, it becomes counter productive to society when they start excluding anyone who has ever had a conviction from jobs as lowly as mc donalds drive through attendant.

    For example I have a friend who had Drunk and disorderly when he was 18, but after wards served 30+ years in the military with distinction along the way being picked to go to OCS and retired with the rank of lt colonel. He was turned down for dozens of jobs because of his criminal record. No one was worried about actually doing anything wrong but company policy at each place was to hire no one with a record. He finally quit admitting to it and was later fired from being the manager of a goodwill, why because he didn’t disclose his criminal record, which would have prevented him from being hired in the first place.

    Imagine if it is hard to get or keep a job in the bible belt for decorated war hero with a long distinguished career to get and keep a simple fill your time provide extra pocket money job, what it does to the average person who does something stupid and ends up in prison. If you can’t find honest work no matter what you did in the first place or how long you have been good, there aren’t a lot of options for you.

  4. KaySee says

    I’d bet that if all states treated their inmates like Arizona’s Maricopa county sheriff and put them in tents in the desert the inmates wouldn’t be coming back as often as 70%. And the cost to house the inmates could be cut 70% or more.

  5. Frank Courser says

    Thank you for pointing out what most of the experts have known for sometime. Our sentencing laws have become a jumbled mess of ever more punitive terms for even the slightest misdemeanor crimes enhanced to felonies “so called wobbler crimes. California sentencing laws have been described as the best offering of those who author bureaucratic
    memoranda, income tax forms, insurance policies or
    instructions for the assembly of packaged toys. We have allowed an ardent belief to overwhelm empirical analysis to reassure us we are doing the right thing. Senator Jim Webb said it best “With so many of our citizens in prison compared with the rest of the world, there are only two possibilities: Either we are home to the most evil people on earth or we are doing something different–and vastly counterproductive. Obviously, the answer is the latter”. It is imperative we review what we are doing and why we do it. And ask are we getting the results we expect in a cost effective manner?

  6. says

    A “SINGLE VOICE PROJECT” is the official name of the petition sponsored by: The National Public Service Council To Abolish Private Prisons (NPSCTAPP)


    The National Public Service Council To Abolish Private Prisons (NPSCTAPP) is a grass roots organization driven by a single objective. We want the United States government to reclaim sole authority for state and federal prisons on US soil.
    We want the United States Congress to immediately rescind all state and federal contracts that permit private prisons “for profit” to exist in the United States, or any place subject to its jurisdiction. We understand that the problems that currently plague our government, its criminal justice system and in particular, the state & federal bureau of prisons (and most correctional and rehabilitation facilities) are massive. However, it is our solemn belief that the solutions for prison reform will remain unattainable and virtually impossible as long as private prisons for profit are permitted to operate in America.

    Prior to the past month, and the fiasco of Fannie Mae, Freddie Mac, AIG, Lehman Brothers, and now the “Big Three” American Automobile manufacturers, the NPSCTAPP has always felt compelled to highlight the “moral Bottom line” when it comes to corrections and privatization. Although, we remain confounded by the reality that our government has allowed our justice system to be operated by private interests. The NPSCTAPP philosophy has always been “justice” should not be for sale at any price. It is our belief that the inherent and most fundamental responsibility of the criminal justice system should not be shirked, or “jobbed-out.” This is not the same as privatizing the post office or some trash pick up service in the community. There has to be a loss of meaning and purpose when an inmate looks at a guard’s uniform and instead of seeing an emblem that reads State Department of Corrections or Federal Bureau of Prisons, he sees one that says: “Atlas Prison Corporation.”

    Let’s assume that the real danger of privatization is not some innate inhumanity on the part of its practitioners but rather the added financial incentives that reward inhumanity. The same logic that motivates companies to operate prisons more efficiently also encourages them to cut corners at the expense of workers, prisoners and the public. Every penny they do not spend on food, medical care or training for guards is a dime they can pocket. What happens when the pennies pocketed are not enough for the shareholders? Who will bailout the private prison industry when they hold the government and the American people hostage with the threat of financial failure…“bankruptcy?” What was unimaginable a month ago merits serious consideration today. State and Federal prison programs originate from government design, and therefore, need to be maintained by the government. It’s time to restore the principles and the vacated promise of our judicial system.

    John F. Kennedy said, “The time to repair the roof is while the sun is shinning”. Well the sun may not be shinning but, it’s not a bad time to begin repair on a dangerous roof that is certain to fall…. because, “Incarcerating people for profit is, in a word WRONG”

    There is an urgent need for the good people of this country to emerge from the shadows of cynicism, indifference, apathy and those other dark places that we migrate to when we are overwhelmed by frustration and the loss of hope.
    It is our hope that you will support the NPSCTAPP with a show of solidarity by signing our petition. We intend to assemble a collection of one million signatures, which will subsequently be attached to a proposition for consideration. This proposition will be presented to both, the Speaker Of The House Of Representatives (Nancy Pelosi) and the United States Congress.

    Please Help Us. We Need Your Support. Help Us Spread The Word About This Monumental And Courageous Challenge To Create Positive Change. Place The Link To The Petition On Your Website! Pass It On!

    The SINGLE VOICE PETITION and the effort to abolish private “for profit” prisons is the sole intent of NPSCTAPP. Our project does not contain any additional agendas. We have no solutions or suggestions regarding prison reform. However, we are unyielding in our belief that the answers to the many problems which currently plague this nation’s criminal justice system and its penal system in particular, cannot and will not be found within or assisted by the private “for profit” prison business. The private “for profit” prison business has a stranglehold on our criminal justice system. Its vice-like grip continues to choke the possibility of justice, fairness, and responsibility from both state and federal systems.
    These new slave plantations are not the answer!

    For more information please visit: http://www.npsctapp.blogspot.com
    To sign the petition please visit: http://www.petitiononline.com/gufree2/petition.html


  7. nathan says

    Obama talks about accountability, but he is no different than Bush in his actions and policies.

    Obama is George Bush’s third term with a new teleprompter.


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