Academic journal article The Yale Law Journal

The Politics of Decarceration: Prisoners of Politics: Breaking the Cycle of Mass Incarceration

Academic journal article The Yale Law Journal

The Politics of Decarceration: Prisoners of Politics: Breaking the Cycle of Mass Incarceration

Article excerpt

BOOK REVIEW CONTENTS  INTRODUCTION                                                      448   I. MASS INCARCERATION: SYMPTOMS, DIAGNOSIS, AND POSSIBLE CURES  451      A. Symptoms                                                  451      B. Diagnosis                                                 453      C. Proposed Reforms                                          456  II. CHANGES IN THE NATIONAL PARTIES                              460 III. RECENT ELECTORAL DEVELOPMENTS AND THE SUCCESS OF PROREFORM   466      INTEREST GROUPS                                                IV. PUBLIC OPINION AND THE CHANGING ELECTORATE                   472 CONCLUSION                                                        480 APPENDIX                                                          481 

INTRODUCTION

In Prisoners of Politics, Rachel Barkow puts electoral politics front and center in debates over criminal-justice reform. Prisoners of Politics is the most recent contribution to an important scholarly conversation about how mass incarceration came to be and how it might be undone. (1) The book's focus on electoral politics distinguishes it from other recent contributions. Elected officials, Prisoners of Politics argues, will be structurally biased toward punitive criminal-justice policies because "tough-on-crime" rhetoric is simpler than "smart-on-crime" rhetoric, and it appeals to a public inclined toward fear due to racist attitudes and the media's focus on violent crime. (2) A main impediment to criminal-justice reform, then, is the class of elected officials--legislators, prosecutors, and judges--who see punitiveness as their only path to electoral success. If mass incarceration is caused by too much direct electoral input, the argument goes, perhaps it can be undone by placing criminal-justice policy outside the domain of electoral politics. The road to a less punitive system, the book contends, lies in expert criminal-justice policymakers who are insulated from electoral politics and can oversee and check the work of prosecutors.

This is a powerful story. It resonates with the demagoguery that has long characterized public debate about criminal justice, from President Nixon's "law-and-order" campaign to President George H.W. Bush's Willie Horton ad to President Trump's fearmongering about urban crime. Given the success of these strategies, how can the American voter be trusted to end mass incarceration?

Tempting as it may be to treat electoral politics as antithetical to decarceration, this Review argues that there is nothing inherent about electoral participation's punitive influence on criminal-justice policy. Drawing on political-science research, including original public-opinion analysis, I argue that more electoral politics--not less--may lead the United States toward criminal-justice reform and an end to mass incarceration. I argue that the apparent tension between electoral politics and an end to mass incarceration is highly contingent--and unlikely to last forever. Three political trends signal possible changes in the years ahead. First, the national politics of criminal justice have changed since the late twentieth century: nearly all national Democrats now support criminal-justice reforms, as do significant parts of the Republican coalition. Second, grassroots movements and activism have already been successful in electing reform-minded officials and in spurring reform at the local, county, and state levels. Third, the electorate will likely become less punitive in the years ahead: today's young Americans have come of age under very different conditions than did their older counterparts, and as younger Americans age into greater political participation, we can expect the electorate as a whole to become less punitive. So long as we do not see a return to the crime spike of the late twentieth century, these three trends likely portend a less punitive future.

If these trends hold, it is possible to envision widespread public support for an end to mass incarceration. …

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