On March 26, 2012, Georgetown Law Professor Louis Michael Seidman delivered the third Hoffinger lecture of the spring semester, entitled “Hyper-Incarceration: Is There a Way Out?” Seidman began the talk with a quick overview of the familiar underlying facts, statistics, and proportions of the hyper-incarceration problem and noted that the last few years have seen a handful of new developments in incarceration and new efforts to change the situation. He briefly discussed the dramatic decline in crime rates, the recent leveling out or possibly declining rate of state-level incarceration, and the beginnings of new kinds of legislative reform (alternatives to incarceration, specialty courts) before quickly pointing out the potential dark cloud behind the recent trends’ silver lining. Though we may be on the verge of a substantial change in incarceration rates, the underlying pathologies that fueled hyper-incarceration—racism, classicism, the social collapse of inner city communities and broader economic trends—remain very much in place. (In his analysis, Seidman cautioned that the conventional definition of racism as a sort of irrational perception held by individuals ignores the serious structural and self-perpetuating aspects of our system of subjugation of the underclass.)
In Seidman’s view, these systems have fueled hyper-incarceration by skewing the way crimes and punishments are ordered and valued. He used the example of the over-enforcement of criminal laws on a target population. Such a target population will recognize the fundamental unfairness of the over-enforcement and will refuse to internalize the norms the criminal law seeks to inculcate. The dominant culture, angry and indignant, will then ratchet up the harsh enforcement to solve this problem, and the system becomes stuck. The dominant group’s perception of the otherness of the target population becomes self-reinforcing as such a tit-for-tat breakdown occurs.
Pivoting to the recent trends toward stabilization of hyper-incarceration, Seidman briefly discussed some possible explanations for the change. He cited a new conservative reaction to hyper-incarceration based on the recognition that our prison system is a bloated, and very expensive, government experiment in social engineering. Seidman then identified three emerging trends that may be functioning as substitutes for hyper-incarceration as a means of social control: (1) stop and frisk policing, (2) non-custodial sanctioning, and (3) specialty courts.
On stop and frisk policing, Seidman concluded that, given the statistics on hit rates and stops actually leading to arrest, the tactic is much more about social control than uncovering criminal activity. The tactic is not so much calibrated to produce arrests as it is to project police power and control. Viewed as new, possibly substitute means of social control not meant to lead to incarceration, the tactic’s low hit rate and arrest statistics begin to appear to be an important part of the idea behind the new policing approach.
With respect to non-custodial sanctioning, Seidman noted that in New York, misdemeanor arrests have increased by over 100% in the past couple decades. These arrests almost never lead to incarceration and are very frequently dismissed. Instead, Seidman noted, the arrests lead to a new, non-custodial means of social control. Relying on the work of NYU Sociology PhD candidate Issa Kohler-Hausmann, Seidman described three important aspects of these arrests and proceedings: (i) marking (creating official records of wrongdoing for each arrestee); (ii) procedural hassle (e.g., nights spent in the holding pen between arrest and arraignment; requiring attendance at frequent (and drawn out) court dates); and (iii) performance (referring to any tasks, therapies, educational programs or services a defendant is required to complete before his case is dismissed). Seidman concluded that each of these three aspects are part of a new and troubling non-custodial exercise of state power.
Finally, on specialty courts, Seidman pointed out several potential problems with the explosive growth in number and breadth of coverage of specialty courts. The first problem Seidman mentioned is the growing potential for the existence of these courts to legitimate the cruelty toward and blameworthiness of those who do not qualify for a jurisdiction’s specialty courts. Seidman then reminded the group that much more of a defendant’s life is open to regulation in these courts than under a normal criminal regime: barriers to drinking alcohol, requirements to wear tracking devices, and legal sanctions for banal violations ranging from being late to work to having a bad attitude. Seidman added that the explosive growth of these courts has been aided by the conversion of two strains of thought: the rhetoric of therapy and the rhetoric of consent. The first of those two, the rhetoric of therapy, fuels the argument that criminal defendants aren’t evil, but sick. While potentially less harsh than moralist rhetoric, because the rhetoric of therapy removes blameworthiness from the conversation, there’s no real requirement that the level or degree of government intrusion align with a sense of the blameworthiness of the criminal defendant’s conduct. The rhetoric of consent, also at play in growth of these courts, relies on the idea that a criminal defendant who is legitimately subject to greater deprivations has the right to consent to lesser deprivations. A specialty court can require all sorts of regulation when incarceration is the alternative.
Seidman closed the lecture by asking how one should think of these new potential substitutions to hyper-incarceration. Seidman began by stating that he in no way means to undervalue the sheer brutality of the American prison system. That said, Seidman noted that we seem to be slipping into a Foucauldian nightmare. Where prison, even under hyper-incarceration, gives us a clear line between freedom and bondage, these new substitutions spread the deprivation of rights and expanded exercise of government authority across that line. Seidman noted that we risk slipping into a society where government controls more and more of our lives. Rather than move toward one side or the other of the terrible choice presented, Seidman closed his remarks on the anger and despair he feels at presented with only those options.
–Student fellow John Cutler (’12)