Indeed, in the final years of the Obama administration, many have called on the White House to take the lead in releasing nonviolent drug offenders, who have become the most high-profile category of the incarcerated in political campaigns to reduce imprisonment. But the federal government could release every single nonviolent drug offender currently serving time in a federal prison, and the United States would still have the highest incarceration rate in the world.
Activists, reformers, and politicians have also targeted the harshness of criminal sentencing. In 1984 President Reagan signed the Sentencing Reform Act, which established mandatory minimum sentences that constrained judicial discretion. In 1986 Congress passed laws creating a 100-to-1 sentencing disparity between crack cocaine and powder cocaine. This change was widely understood as racially biased due to the consumption of crack in poor neighborhoods. It went hand in hand with so-called “truth in sentencing” laws and with parole reforms that vastly curtailed the eligibility of prisoners for parole, meaning they were far more likely to serve more of the sentences on the books.
All these increases in sentencing at state and local levels had a profound effect. Before the Sentencing Reform Act of 1984, the average federal drug offender could expect to serve 58 percent of his sentence, with the remainder on parole. After 1986 that increased to at least 87 percent. From 1986 to 1997 average federal prison sentences for drug offenders more than doubled from thirty months to sixty-six months.
But John Pfaff, a law professor and economist at Fordham who does empirical work on the causes of mass incarceration, points out that even as incarceration exploded in the 1990s, median time served has been either flat or in decline, while the number of arrests for drug law violations increased from 500,000 in 1982 to 1.5 million in 2007. He argues that the number of people being thrown into the system (through arrests and prosecutions), not the total time they spend there, has driven mass incarceration.
For this, Pfaff blames prosecutors, not cops. Prosecutors have tremendous discretion over which cases to bring and which to drop, whether to throw the book or slap the wrist. “You have to focus as much on the culture as the law,” he says. “Prosecutors are part of a culture that has expectations about crime toughness, and when you combine that with their tremendous amount of latitude, you get staggering punitiveness.”
The beat cop deciding to make an arrest, the local district attorney deciding to charge someone with five crimes carrying a max of forty years rather than one with a max of five—these are the individuals who comprise what we call the criminal justice system. But there’s no such thing as the criminal justice system. “The criminal justice system is not a ‘system’ at all,” Pfaff writes, “and treating it as such can lead analysts to overlook important causes of prison growth.”
American criminal law is constructed, maintained, patrolled, and enforced through a highly distributed, at times byzantine and chaotic set of overlapping jurisdictions, interacting awkwardly with one another. No one takes orders from any unified entity. No single actor or group of actors created mass incarceration, and no single group of actors can undo it. We have no single switch to flip. The Colony is an emergent phenomenon.
There’s a deeper story here, about how over the same period of time many different institutional actors all moved in the same direction, namely toward more: more arrests, longer sentences, more aggressive prosecutions, more years before parole, more criminal statutes on the books, more money spent on prisons. The list is endless.
An astounding confluence of thousands of institutions and millions of individuals was necessary to produce the modern American prison state. Think for a moment how hard it is to make major policy changes in America—to shift from fossil fuels to renewable energy, to implement something approximating universal health care. Think of all the special interests and resistance and organizations and constituencies that must be fought, bargained with, steamrolled, cajoled, and bought off. Then think of what it took to create the monstrous expansion of the Colony.
Like a magnet tugging countless tiny filings into the bands of force around its poles, a profoundly powerful political force was at work acting on the thousands of individual systems, actors, and institutions, bringing them into a tyrannical alignment.
That force was white fear.
White fear is both a social fact and something burned into our individual neural pathways. In laboratory studies white people rate children of all races equally “innocent” until about age ten, when the innocence of black children suddenly fades, while that of white children endures. In experimental settings, people of all races perceive black people as more threatening than people of other races, but the effect is particularly exaggerated with white respondents. These studies don’t ask respondents for their conscious racial attitudes or articulable political beliefs. Rather, they test respondents in split-second decision making: hitting one button for friend and another for foe, as images of people, black and white, some armed and some carrying groceries, pop up on the screen.
The point of these experiments is to test our deepest, least conscious, most hardwired reactions to people of different races. Time and time again they uncover that even those with egalitarian racial politics possess unconscious bias. In fact, while white participants have higher levels of racial bias than nonwhite subjects, even African Americans consistently show antiblack suspicion. Racial fear lives in the deepest part of our psyches. It lurks in our synapses.