When a crime victim has no rights...

Justice for Victims of Prison Violence 

Crime Victims' Rights Week 2013

AZ Attorney General's Office

Good article here on victims rights issues in California - albeit a sad story. They're even more restrictive with resources it sounds like, than here, but AZ is still  pretty bad for victims of crime. Here, certain victims rights are constitutionally guaranteed for everyone EXCEPT for "those in custody for an offense". Under AZ's "Victims Bill of Rights", Walmart counts more as a human being with the standing of a victim in court over petty things like shoplifting than a prisoner who was raped, or their survivors if they were murdered in custody - probably because state agents themselves are so often the perpetrators of crimes against prisoners. 

So when Kini Seawright's only son Dana was murdered in Lewis prison for being a race traitor and she lost  her health, her mind, her hope, her job, her medical insurance, and her home in the aftermath, she wasn't even eligible for grief counseling from the state, much less emergency aid - nothing of the millions set aside to help crime victims, simply because her son was in custody at the time he was murdered. Why is she being punished for that? 

Kini and Samantha (below) and so many other victims of crime were thrown under the bus by the prosecutor-led so-called "victims' rights" movement a long time ago. If they really cared a damn about the rights of all victims, the movement would be reaching out to these women too and fixing these stupid laws.

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Unfair Punishment Part One: Victim Discrimination 

A state program that's supposed to help crime victims denies people who have had run-ins with the law or are afraid of being victimized again.

East Bay Express 

March 5, 2014

By Sam Levin @SamTLevin

The front door was wide open when police arrived at the home of Samantha Rogers at 3:21 a.m. on February 23, 2010. Inside the Stockton apartment, Rogers was alone, sitting on the kitchen table, wiping her face with a towel. The television was overturned and there was blood smeared across the living room carpet and walls.

Rogers didn't think she needed to go to the hospital. "I was like, 'There's nothing wrong with me. I'm okay,'" Rogers, now 46, recalled. "They could see I was in shock."

Rogers was not okay. Her whole face was swollen, she had a large cut under her eye, and her nose was broken, according to a Stockton Police Department report and Rogers' own recollection of the incident. Earlier that night, she and her boyfriend of three years had invited friends over to play cards and dominoes at their shared home. At one point, the couple got in an argument about money, and Rogers' boyfriend started getting violent. The guests "decided to leave before things escalated," the police report stated. On their way out, the friends could hear Rogers screaming for help, but they did not call police. Eventually, a neighbor did. By then, Rogers' boyfriend had dragged her on the floor and punched and kicked her in the face and head multiple times, the report said.

When cops arrived, the boyfriend was already gone ­— and he had taken her wallet and credit card with him.
Police immediately called in medics, who tried to convince Rogers that she needed to go to the emergency room. "They were like, 'Ms. Rogers, you don't understand how bad you're messed up. We can see, because we're looking at you,'" she recalled. Finally, they found a pocket mirror in her bedroom and handed it to her.

"I just started crying," she said. "My face was unrecognizable."

At St. Joseph's Medical Center, doctors told her she needed five sets of stitches, but that was not the only bad news she received. Soon after, she learned that the California Victim Compensation Program, which provides financial assistance to victims of violence, would not give her a dime of support. At the time, Rogers was on felony parole, which automatically disqualified her from receiving any aid from the state. She had been released from state prison a year earlier after more than seventeen years in and out of the criminal justice system for a range of nonviolent, victimless crimes, mostly tied to drug offenses and her battle with substance abuse. Rogers said that when she was attacked in 2010, she still had roughly eight more months left on parole. That meant the state would not help her with one of her most pressing needs — moving away from her home in Stockton where her ex-boyfriend could find her.

Just a few weeks after Rogers went to the hospital, an official from the San Joaquin County District Attorney's Office informed her of the state's Victim Compensation rules. "They said there's nothing they could possibly do to help me in any way," she said. "I had to keep my cool. But in actuality I was outraged. I was like, fucking for real? Parole is stopping me from getting the support I need? Just because I'm on parole or ... had something to do with another crime that makes me less qualified to get help?"

"That makes me feel like I'm less human," Rogers continued, noting that finding a new place to live away from her violent ex-boyfriend was critical to her safety. "I feared that if he came back, he might want to finish me off."

Over the past year, Victim Compensation, a state program that reimburses victims for a range of expenses like hospital bills, relocation, and mental health services has come under increased scrutiny for its discriminatory practices. In December, critics won a victory when the board that oversees the program voted to allow sex workers to access aid; the now-defunct regulation had stated that a victim's involvement in "prostitution" leading up to the act of violence barred her or him from receiving compensation. A sex worker who spoke out about being brutally attacked and then subsequently denied aid sparked the debate. While social justice advocates celebrated that change — which is still in the process of being finalized and implemented — other activists, especially prisoners' rights groups, continue to lament the other inequities written into state law. Namely, formerly incarcerated people who become victims of violence are barred from receiving any financial assistance while on felony parole and probation. And in California, that includes people convicted of nonviolent drug offenses.

It's not uncommon for low-income people who get caught up in the criminal justice system to become victims of violence themselves. In this way, the program's exclusion of people with criminal records punishes some of the most vulnerable victims — those struggling to rehabilitate their lives after incarceration and who already have little to no support. They often can't find a safe place to live, a steady job, or enough money to survive. In these challenging circumstances, people reentering society can get caught up in gun violence and abusive relationships. And when they do, the state's denial of aid can send them on a downward spiral and, advocates argue, revictimize them.

But this isn't the only group that the program refuses to help. The state also generally rejects applicants who don't cooperate with police, which can be an obstacle for victims of domestic violence who are trapped in dangerous situations and afraid to talk with cops. And for victims caught up in gang activity, cooperating with law enforcement can be fatal — in some cases even exposing family members and friends to retaliation and violence. Program officials say they consider these kinds of risks, but advocates say unfair denials due to lack of cooperation are common. And as these victims work to protect themselves and their loved ones, the lack of basic financial aid can dramatically hinder their ability to recover from a violent episode.

Critics of the program, which is primarily supported by fines criminal offenders are ordered to pay when they are convicted, also argue that the state has more than enough cash to aid victims it currently excludes: In fiscal year 2012-13, California officials reported a program fund "reserve" of nearly $80 million.

"The fact that categories of people are barred from any type of compensation exposes such deep problems with the way in which the fund is administered," said Diana Block, an advisory board member of the California Coalition for Women Prisoners.

Rogers today still struggles to understand why a victimless, nonviolent crime in her past — one for which she already served time behind bars — prevented her from getting the basic help she needed. "You keep saying you want me to get rehabilitated. ... But where do we get some healing?"

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As a victim of domestic violence with medical bills, a damaged home, and a perpetrator on the loose, Rogers was just the kind of candidate the state is supposed to help. When it was formed in 1965, the Victim Compensation Program was the first of its kind in the nation solely dedicated to providing financial aid to those who have faced violence. The program is a "provider of last resort," explained Jon Myers, deputy executive officer of public affairs and outreach for the Victim Compensation and Government Claims Board. "We help victims who really don't have anywhere else to turn to." That means the state program can help with crime-related expenses not covered by other sources, such as private insurance or Medi-Cal. (It can cover co-pays, for example.)

The program supports victims of domestic violence, child abuse, sexual assault, drunk driving accidents, robbery, and hate crimes, among others. It also offers aid to the families of homicide victims and people legally dependent on victims for financial support. (It does not support victims of nonviolent offenses, like financial crimes). Victim Compensation can help with a wide range of expenses, including medical and dental treatment, mental health services, income loss, funeral and burial expenses, home security, relocation, and crime-scene cleanup. "We see it as a big relief to victims in helping them overcome the trauma of a violent crime," said Myers, noting that expenses can quickly add up and overwhelm victims.

In fiscal year 2012-13, the state approved 41,470 claims, representing 78 percent of the total applications it received, said Anne Gordon, spokesperson for Victim Compensation. The state denied 11,649 people — 22 percent of total applications. (Those figures do not factor in whether a denied claim was appealed and subsequently approved.) On average, the board receives two hundred applications per workday and approves 40,000 to 50,000 per year. In fiscal year 2012-13, the program paid nearly $62 million to victims in total, which averages about $1,500 per approved applicant.

"That's a lot of services and a lot of people that we are helping," Myers said. Since its inception, the program has provided victims with more than $2.2 billion in total assistance.

Victims can apply through county Victim Witness Assistance Centers or through the state, and generally must do so within three years of the crime being committed. The state sets financial limits for different categories, such as a $63,000 cap on medical reimbursements and a $5,000 maximum for funeral and burial costs.
There are also a series of factors that render an applicant ineligible. In general, people who "knowingly and willingly participated in or were involved in the events leading to the crime" and victims who do not cooperate with law enforcement don't qualify for any reimbursements.

Furthermore, as was the case with Rogers, a person who is convicted of a felony may not be granted compensation until that person has been discharged from probation or parole. Probation is administered by counties and parole is run by the state and involves people convicted of felonies released from prison. Gordon said that individuals on felony probation or parole are not automatically denied and that their claims can gain initial approval, but they cannot collect any assistance until they are off probation or parole. And even at that time, expenses incurred while on probation and parole can't be retroactively covered.

In short, the program is inaccessible to people recently convicted of felonies. In California, that's a large group. As of January, the California Department of Corrections and Rehabilitation had 47,525 parolees assigned to its adult parole operations division. The length of probation differs by county. In Alameda County, the standard period for felonies is five years, and the county probation department supervises approximately 13,000 people at a given time. A majority of them have been convicted of felonies. There are 58 counties in the state. And there are hundreds of non-serious, low-level offenses that are classified as felonies.

"Simply put, it's just not fair," said Alameda County Public Defender Brendon Woods. "I don't honestly understand the rationale as to why the victim of a crime who is on probation or parole is not entitled to the same compensation as someone who's not."

The policy "uniquely disadvantages people from underserved communities," added Kimberly Horiuchi, attorney with the ACLU of Northern California, arguing that it's wrong for the state to make judgments about who is worthy and who is not. "Victims are victims. Rape is rape."

Gordon said her office has no data on the number of felony parolees and probationers who seek compensation. She said the most common reasons for denial include an incomplete application, a submission outside of the required filing period or from someone out-of-state, a request from a victim of a non-violent crime, and an applicant having participated in the crime or refused to cooperate with police.

But some victims may not even fill out an application once they learn the program is not available to them. "They already know the door is slammed in their face," said Ida McCray, director of Families With A Future, an organization affiliated with the San Francisco-based nonprofit Legal Services for Prisoners with Children. "We get the message. It's 'we don't give a fuck about y'all.' We are used to the wounds."

The policy limiting this fund to a certain class of people also serves to reinforce deep prejudices against those with criminal records. "It perpetuates the lie that someone's humanity ends once they get a conviction," said Eliza Hersh, director of the Clean Slate Practice at the East Bay Community Law Center. "People who suffer are people who suffer regardless of their supervision status or past mistakes."

For those rejected, a denial is not simply a financial inconvenience. Rogers, who is now a program assistant for the California Coalition for Women Prisoners, which is based in San Francisco, was unable to find a new place to live after her boyfriend beat her savagely in 2010. Even though she got an emergency restraining order against him, he repeatedly harassed her by phone after the incident, seemingly trying to convince her not to press charges, she said. Rogers' apartment was also in a complex where her boyfriend's family lived, giving them an opportunity to keep tabs on her activities and report back to her estranged partner, she added.

"He knows everywhere I go," she said. Rogers wanted to move to Sacramento or Los Angeles where she had family. And Victim Compensation offers up to $2,000 for relocation, which could have helped her pay for transportation, first month's rent, and a security deposit. "I would've had that opportunity to relocate and get a fresh new start," she said.

Without the financial aid, Rogers stayed in Stockton, started using drugs again, and by April, just two months after the incident, was living on the streets.

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The exclusion of people on parole and probation appears to be rooted in a belief that people who commit crimes cannot then become victims, too. Notably, the statute outlining Victim Compensation eligibility states that people who have been convicted of a felony should be considered a lower priority than non-felons. Wayne Strumpfer, chief counsel of the Victim Compensation and Government Claims Board, said this part of the law currently has no practical application, and that once off parole and probation, applicants with felonies on their records are treated the same as others. Still, the language reflects an ingrained bias against people with criminal records — a fact that today can play out in ways beyond the ban on parolees and probationers.

Ruben Leal was shot on October 11, 2010 in East Oakland. Leal, then 22 years old, suffered a collapsed lung and fractured shinbone and temporarily had to use a wheelchair. Two days after the shooting, his life got a lot worse. On October 13, 2010, the City of Oakland held a press conference announcing that it was seeking an injunction against 42 alleged members of the Fruitvale "criminal street gang" known as the Norteños. Leal, who was born and raised in Oakland and had been taking classes at Laney College at the time, was named as one of the gang members. The Oakland City Attorney's Office, with support from the Oakland Police Department, was seeking a civil restraining order that would restrict the activity of the named defendants. Leal said he was not involved with the gang at the time of the injunction.

"Me being shot was used as evidence for the gang injunction," said Leal, who is now 25 and works as an outreach coordinator with Communities United for Restorative Youth Justice. As part of the injunction, OPD officer Douglass Keely filed a declaration outlining each defendant's criminal history and evidence of gang ties. Summarizing Leal's involvement, Keely noted that the East Oakland resident had been injured in a drive-by incident in which as many as twelve rounds were fired. The report also listed Leal's criminal history — all minor incidents that OPD said tied him to the Norteños gang. (The report mentioned a "pending" felony case, but prosecutors eventually dropped those charges against Leal.)

After the shooting, the officer that showed up to his home to talk to him about the incident was Keely, Leal recalled. "This is the same guy that wants to put this gang injunction on me. This guy wants to talk to me?"
His attorneys advised against it. "It was a conflict of interest," said Leal. "I would've talked with any cop and tell them my story, but not ... Keely."

Michael Siegel, one of the lawyers who represented alleged gang members in the case, said that police searched and raided the homes of those named in the injunction soon after it was filed. When Keely arrived at the home of Leal, it wasn't even clear if he was there to talk about the recent shooting or simply to advance OPD's gang injunction case against him in court, Siegel said. "It was an incredibly unjust situation. Keely is providing direct evidence against Ruben. It was definitely not in [Leal's] interest ... to have communications with him."

Siegel further noted that, at the time, Leal "was not an active gang member. He was making a positive impact on his community."

Leal's medical bills related to the shooting, however, had started to pile up, to more than $100,000 total at the time. He applied for Victim Compensation to cover some of the costs, which he could not afford. Within about a month, he got a notice of rejection, citing the fact that he did not cooperate with police.

"I felt like I was being revictimized," said Leal. "I felt like I didn't have no support from nobody."

He and his attorneys appealed the denial, but never heard back, according to Leal and Siegel. They said they also tried to make it clear to OPD that Leal would be willing to talk to a different cop. OPD spokesperson Frank Bonifacio noted that Victim Compensation approves claims — not police departments. Keely declined to comment on Leal's case, but said that, in general, a victim can have his attorney present when talking to police and in some cases can give a statement to a different officer if there is a concern about a specific investigator. But it is crucial that victims cooperate, he said: "The most important thing for us is to solve the case any way possible."

Regardless, Leal did not get the financial support California typically provides to victims of gun violence, which was a significant obstacle to his physical and psychological recovery.

"The folks that have suffered this trauma — they should invest in these people. This is not rocket science," said Leal. "If you don't help them overcome that traumatic experience, they're going to find a way, and the way they find is not going to be healthy for them or for others. ... The way they are going to feel better is reproducing that trauma onto someone else."

In other words, the cycle of violence continues. And the pain lingers. After the shooting, Leal suffered several serious panic attacks. "He had hurt in his eyes and in his spirit," said George Galvis, executive director of Communities United for Restorative Youth Justice, recalling his first time meeting Leal, shortly after the shooting. "He looked wounded."

Leal said he has made significant progress since the incident. Still, he added, "Some of those scars are never going to heal."

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The Victim Compensation program's rejection of Leal is a relatively common occurrence, according to some Alameda County activists. People caught up in street violence often have had past interactions with law enforcement, which can become an obstacle to receiving the aid they need to recover. Leal said he could think of about ten people he knows who have been denied, even some who cooperated with police despite the risks associated with snitching. The only time he has heard of approvals were for families of homicide victims seeking coverage for funeral expenses.

Victim Compensation also bars access for those involved in the events leading up to the crime, including "mutual combat," "illegal drug-related activity," and "gang involvement." The program's regulations state that gang membership alone is not a disqualifying factor, but several advocates who help victims navigate the application process said it seems that way in practice.

"If you're wearing any particular color that a police officer might deem is gang related, then that's something ... that can get you denied," said Linnea Ashley, training and advocacy manager of the National Network of Hospital-based Violence Intervention Programs. Ashley is based in Oakland at the offices of Youth ALIVE!, a nonprofit and a founding member of the network.

Erroneous statements in police reports can also disqualify victims from receiving compensation, said Rafael Vasquez, lead hospital intervention specialist with Youth ALIVE!'s Caught in the Crossfire program. That program offers case management for victims, often starting at hospitals immediately after a shooting. Part of that work involves helping them navigate the Victim Compensation process. Vasquez recalled one case of a young teenager who was shot in the head and survived — but was denied compensation because of a belt found at the crime scene that cops said indicated his gang involvement. In actuality, Vasquez said, the belt didn't even belong to the victim, who was not a gang member; rather, the crime simply occurred in an area with regular gang violence.

In these kinds of cases, people are essentially rejected because of where they live, a form of victim-blaming, said Kyndra Simmons, Caught in the Crossfire program manager. "You went into an area where you know there's criminal activity. It's almost as if you put yourself in that situation. But that's where they can afford to live."

Youth ALIVE! sometimes reaches out to police, requesting that they amend or clarify statements so that a victim is not incorrectly declared responsible for the crime. From there, the organization appeals the compensation denials, a process that can be successful. But not all victims have these advocates. In addition to these more nuanced obstacles at Youth ALIVE!, around 20 to 30 percent of the victims that the organization supports are on parole and probation.

"The system that is currently in place views victims and perpetrators in a very simplistic way," said Nicole Lee, founding executive director of Urban Peace Movement, an anti-violence group in Oakland. "You're either a victim or a perpetrator and you can't be both. The reality is ... violence is a cycle. And as a society, we have to find policies that disrupt the cycle."

For a variety of reasons, domestic violence victims can also be very reluctant to file charges or cooperate with police, but that doesn't mean they aren't deserving of aid, said McCray, who works as a domestic violence counselor at S.F. Bay Counseling and Education. "When they try to separate, that's the most dangerous time," she said of people who attempt to get away from their abusive partners. McCray also noted that domestic violence survivors face risks when reporting their partners to cops. Plus, she said, "women often times stay in domestic violence situations because of their children. They are the glue of the family."

Deep distrust of law enforcement can also motivate their lack of cooperation, said McCray, who works with formerly incarcerated people as the director of the Women's Resource Center, which is affiliated with the San Francisco Sheriff's Department. "There's a cultural stigma behind talking to cops, because these communities have already been oppressed ... and targeted by police forces." And the Victim Compensation denials sting, she said. "It keeps them depressed. It keeps them angry. ... And it's just so fucking petty."
Strumpfer, the Victim Compensation chief counsel, said that the program has limitations in place for "public safety purposes." If a victim is refusing to talk to police and withholding information, then the state cannot support that individual by offering benefits, he said.

"The burden is on us to show a lack of cooperation," he said, noting that there are exceptions to the rule and that Victim Compensation would consider the risks a victim faces in talking to law enforcement. The state cannot aid victims who break the law or irresponsibly put themselves in harm's way prior to the incident, he continued. Strumpfer cited examples of a burglar who is shot during the act or an individual actively enticing someone to fight at a bar.

Ken Ryken, head of the Alameda County District Attorney's restitution unit, explained it this way: "If a person is engaged in criminal activity that's dangerous, they assumed that risk. ... The state shouldn't have to bear that cost."

In cases of domestic violence, state law states that victims should not be rejected solely because they did not file a police report and that the program should consider other evidence such as medical records or the existence of a restraining order. But victims can still be denied compensation if they refuse to testify, request that the suspect not be prosecuted, or decline to "completely and truthfully" respond to a request for information "in a timely manner."

Regarding the question of gang involvement, Strumpfer said that the state reviews applications on a case-by-case basis and only reject requests when it finds involvement in the crime in question. "It's not just a throwaway line in the police report."

Asked why the state does not compensate felony parolees and probationers, he responded that this policy has been written into law for a long time and that it is "just another condition of being on probation or parole." And it's not necessarily about saving the state money, Myers noted: "It's more of a policy decision, not a financial decision."

Strumpfer pointed out that the program is funded by offenders through restitution fees, which are the mandatory fines required of all adults convicted of misdemeanors and felonies in the state. "If you're a criminal offender, you're paying into the program," Strumpfer said. "You may very well likely owe restitution."

Critics reject this notion, arguing that people forced to financially support this fund should not be disqualified from accessing it when they are in need. (Prisoners' rights groups also strongly oppose the restitution fines on a more fundamental level, due to the fact that the fees can become insurmountable debts for people reentering society after incarceration; for more, see Part Two in our "Unfair Punishment" series next week).

Because discrimination against people on felony parole and probation is written into law, expanded access would require legislative action. I asked Strumpfer if last year's debate around sex workers' rights had sparked further evaluation within the program about its ongoing exclusionary practices, including the exclusion of people convicted of nonviolent crimes, like drug offenses. He replied: "The [program's] board members have not showed any signs of wanting to review anything else."

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When the Victim Compensation program is a dead end, people recovering from violence must look elsewhere for support. And advocacy organizations all too familiar with the state's denials have focused on alternative ways to support victims, while recognizing that financial aid can only go so far anyway.

Communities United for Restorative Youth Justice sometimes leads "healing ceremonies," for example, which give victims and family members a meaningful opportunity to grieve and reflect, said Galvis, the executive director. "It's about how we restore balance and restore that spirit for people who have suffered from trauma," he said. "There's strength and healing in letting those tears flow."

Leal said it made a huge difference when advocates like Galvis reached out to him. "These different community members came out and supported me on their own dime just because they wanted to. ... That helped me with my healing journey."

Communities United also organizes fundraisers for victims, Galvis said. This can be critical when families don't get adequate compensation from the state.

As for Samantha Rogers, she was homeless for several months in 2010 after the state refused to help her relocate. She ended up at a rescue mission and eventually received significant counseling, which helped her get back on her feet. But it took time. And Victim Compensation could have put her on a very different path, she said. "If they could've supported me back then, there's no telling where I could've been four years later."

Rogers has been off of parole for more than three years and now gets to spend more time with her four children, daughters ages 30 and 25 and sons ages 22 and 20. Today, she regularly speaks at events and marches in rallies advocating for the rights of incarcerated people.

For the sake of Justice, raise the crime rate...

Long but incredibly worthy read, especially for "victims' rights" advocates, like Steve Twist, who authored and promoted the Crime Victims' Bill of Rights as an amendment to the AZ Constitution in 1990, which resulted in classifiying victims of crime "in custody for an offense" as non-victims. It should be no wonder, then, that AZ prisoners are treated as non-humans by their handlers so often.

This has major implications for how prison rape victims are treated, of course, which I've been deluged with letters about of late. And look at this excerpt form the article below: let it sink in, in fact: 

"The Justice Department now seems to be saying that prison rape accounted for the majority of all rapes committed in the US in 2008, likely making the United States the first country in the history of the world to count more rapes for men than for women."

Depriving people of basic rights while in custody also affects individuals who were never even convicted of a crime, whose perpetrators were those responsible for their safety - like Marty Atencio, killed in a "Jailer's Riot" by officers while being booked. Not that his killers are ever being charged with a crime, since they are police officers just doing their duty. But if they had been criminally charged his family wouldn't qualify for any victims' rights resources, nor do they have standing with the courts as victims, thanks to the "victims rights advocates" of the 1990's. Even Walmart gets to call themselves a victim in court and collect restitution if someone commits a crime against them, and they aren't even a human being.

The least thing people like Steve Twist could do is step up to the plate now, acknowledge their grave mistake, and help us change that amendment so everyone's rights are protected. Until then, both the people we incarcerate and those we entrust thier care to will victimize the most vulnerable prisoners they can knowing that there will be no one who really cares to hold them accoutnable. Every rape, every beat down, every murder, and even every suicide driven by the terror of meeting a worse fate in the custody of the AZ DOC in particular, should weigh heavily on those advocates today.

Much more than just addressing victimization in prison, though, this article makes a compelling argument for prison abolition, for those of you so often puzzled by such a vision.

 Crime Victims Rights Week 2013

"Justice for Victims of Prison Violence"

AZ Attorney General's Office (Phoenix: April 25, 2013)

------------from N+1 magazine----------

"Raise the Crime Rate"

N+1 magazine

January 26, 2012

Christopher Glazek

Is it true that living in America has become riskier? In 2006, the political scientist Jacob Hacker published The Great Risk Shift, a progressive tract that appropriated the vocabulary of wealth management to show how thirty years of privatization and deregulation had abraded the security of the American family. Risks once borne by corporations and the government, Hacker noted, like unplanned health costs, are now the responsibility of Mom and Pop. Transferring risk from the collective to the individual, though, ends badly for everyone. Family affliction, like banker “contagion,” is tricky to sequester: if Larry and Terry get bankrupted by bad luck, their misfortune cascades, dragging down creditors, neighbors, and especially their children. The reason liberals like insurance is that it helps diffuse risk throughout society. Pooling risk, one might say, is the essence of the progressive social contract.

Hacker focuses on hazards like cancer and credit exposure, but these are not the only perils we face. Every time we leave the house—and more often, actually, if we remain within it—we run the risk of getting stabbed, shot, raped, or robbed. But while financial risks have crested in recent decades, the risk of suffering personal violence has receded. According to government statistics, Americans are safer today than at any time in the last forty years. In 1990, there were 2,245 homicides in New York City. In 2010, there were 536, only 123 of which involved people who didn’t already know each other. The fear, once common, that walking around city parks late at night could get you mugged or murdered has been relegated to grandmothers; random murders, with few exceptions, simply don’t happen anymore.

When it comes to rape, the numbers look even better: from 1980 to 2005, the estimated number of sexual assaults in the US fell by 85 percent. Scholars attribute this stunning collapse to various factors, including advances in gender equality, the abortion of unwanted children, and the spread of internet pornography.

It shouldn’t surprise us that the country was more dangerous in 1990, at the height of the crack epidemic, than in 2006, at the height of the real estate bubble. What’s strange is that crime has continued to fall during the recession. On May 23, in what has become an annual ritual, the New York Times celebrated the latest such finding: in 2010, as America’s army of unemployed grew to 14 million, violent crime fell for the fourth year in a row, sinking to a level not seen since the early ’70s. This seemed odd. Crime and unemployment were supposed to rise in tandem—progressives have been harping on this point for centuries. Where had all the criminals gone?

Statistics are notoriously slippery, but the figures that suggest that violence has been disappearing in the United States contain a blind spot so large that to cite them uncritically, as the major papers do, is to collude in an epic con. Uncounted in the official tallies are the hundreds of thousands of crimes that take place in the country’s prison system, a vast and growing residential network whose forsaken tenants increasingly bear the brunt of America’s propensity for anger and violence.

Crime has not fallen in the United States—it’s been shifted. Just as Wall Street connived with regulators to transfer financial risk from spendthrift banks to careless home buyers, so have federal, state, and local legislatures succeeded in rerouting criminal risk away from urban centers and concentrating it in a proliferating web of hyperhells. The statistics touting the country’s crime-reduction miracle, when juxtaposed with those documenting the quantity of rape and assault that takes place each year within the correctional system, are exposed as not merely a lie, or even a damn lie—but as the single most shameful lie in American life.

From 1980 to 2007, the number of prisoners held in the United States quadrupled to 2.3 million, with an additional 5 million on probation or parole. What Ayn Rand once called the “freest, noblest country in the history of the world” is now the most incarcerated, and the second-most incarcerated country in history, just barely edged out by Stalin’s Soviet Union. We’re used to hearing about the widening chasm between the haves and have-nots; we’re less accustomed to contemplating a more fundamental gap: the abyss that separates the fortunate majority, who control their own bodies, from the luckless minority, whose bodies are controlled, and defiled, by the state.

Before last year, the federal government had never bothered to estimate the actual number of rapes that occur in prisons. Its data relied on official complaints filed by prisoners, which in recent years have averaged around 800. One such complaint was filed in 1995 by Rodney Hulin, a boy from Amarillo, Texas, who had been arrested as a 15-year-old after throwing a Molotov cocktail into a pile of garbage. The trash burned, causing about $500 worth of damage to the exterior of an adjacent house. Hulin’s prank was unimpressive, but Texas in the mid-’90s had little tolerance for teenage ruffianism; in 1994, George W. Bush had become governor, defeating Ann Richards, a popular incumbent, by depicting her as soft on crime. Hulin was charged with two counts of second-degree arson. He was a small guy—just five feet tall and 125 pounds—but he got a big sentence: eight years in adult prison.

Within a month of arriving at Clemens Unit, a temporary holding facility outside Houston for juveniles on their way to adult prison, Hulin was raped by another inmate. He asked to be moved out of harm’s way, but his request was denied, and the rapes continued. In a letter to prison authorities, he wrote, “I might die at any minute. Please sir, help me.” Help was not forthcoming: getting raped was not deemed urgent enough to meet the requirements of the prison’s emergency grievance criteria. When Hulin got his mother to complain to the prison’s warden, she was told that Hulin needed to “grow up” and “learn to deal with it.”

Hulin’s method for dealing with it was to kill himself. Ten weeks after his arrival, he was discovered dangling from the ceiling of his cell.

Hulin’s case was unusual: most prisoners who get raped do not write letters to the warden. It isn’t hard to see why: resisting an inmate who claims your body as his own, or, worse, acquiring a reputation as a “snitch,” can turn an isolated incident into months of serial gang rape. Just ask Roderick Johnson, a petty thief who was attacked by his roommate shortly after arriving at a Texas prison. Johnson asked to be transferred to a different section of the facility, and got his wish. But news of Johnson’s physical availability had spread throughout the complex—after you’re raped once, you’re marked—and he was soon enslaved by a gang. In addition to passing Johnson around among themselves, Johnson’s new overseers sold his ass and mouth to a variety of clients for $3 to $7, a competitive enough price that it resulted in multiple rapes every day for the eighteen months that Johnson spent in prison. When he went to the authorities, they laughed and told him to “fight or fuck.”

Bringing criminal charges against prison officials for failing to protect inmates is virtually impossible in the United States, but civil actions can be filed. After Johnson got out, he lodged a civil suit against six guards who he said refused to help him. In 2005, a Wichita Falls jury found in favor of the guards. In 2007, after passing a note to a clerk at a gas station that read, “I have 9 mm. Put the money in the bag,” Johnson was arrested again. This time, since Johnson was a repeat offender, he got nineteen years.

Victims in juvenile facilities, or facilities for women, have an even tougher time: usually it’s the guards, rather than the inmates, who coerce them into sex. The guards tell their victims that no one will believe them, and that complaining will only make things worse. This is sound advice: even on the rare occasions when juvenile complaints are taken seriously and allegations are substantiated, only half of confirmed abusers are referred for prosecution, only a quarter are arrested, and only 3 percent end up getting charged with a crime.

In January, prodded in part by outrage over a series of articles in the New York Review of Books, the Justice Department finally released an estimate of the prevalence of sexual abuse in penitentiaries. The reliance on filed complaints appeared to understate the problem. For 2008, for example, the government had previously tallied 935 confirmed instances of sexual abuse. After asking around, and performing some calculations, the Justice Department came up with a new number: 216,000. That’s 216,000 victims, not instances. These victims are often assaulted multiple times over the course of the year. The Justice Department now seems to be saying that prison rape accounted for the majority of all rapes committed in the US in 2008, likely making the United States the first country in the history of the world to count more rapes for men than for women.

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America’s prison system is a moral catastrophe. The eerie sense of security that prevails on the streets of lower Manhattan obscures, and depends upon, a system of state-sponsored suffering as vicious and widespread as any in human history. Dismantling the system of American gulags, and holding accountable those responsible for their operation, presents the most urgent humanitarian imperative of our time.

Progressives lament the growth of private prisons (prisons for profit). But it’s sadism, not avarice, that fuels the country’s prison crisis. Prisoners are not the victims of poor planning (as other progressive reformers have argued)—they are the victims of an ideological system that dehumanizes an entire class of human being and permits nearly infinite violence against it. As much as a physical space, prisons denote an ethical space, or, more precisely, a space where ordinary ethics are suspended. Bunk beds, in and of themselves, are not cruel and unusual. University dorms have bunk beds, too. What matters is what happens in those beds. In the dorm room, sex, typically consensual. In prisons, also sex, but often violent rape. The prisons are “overcrowded,” we are told (and, in fact, courts have ruled). “Overcrowding” is a euphemism for an authoritarian nightmare.

As sites of governmental authority, prisons destabilize Weber’s definition of the state as the monopolist of violence. In prisons, the monopoly is suspended: anybody is free to commit rape and be reasonably assured that no state official will notice or care (barring those instances when the management knowingly encourages rape, unleashing favored inmates on troublemakers as a strategy for administrative control). The prison staff is above the law; the prison inmates, below it. Far from embodying the model of Bentham/Foucault’s panopticon— that is, one of total surveillance—America’s prisons are its blind spots, places where complaints cannot be heard and abuses cannot be seen. Though important symbols of bureaucratic authority, they are spaces that lie beyond our system of bureaucratic oversight. As far as the outside world is concerned, every American prison functions as a black site.

The media mostly honors the government’s preference for leaving prisoners in the shadows. The nation’s prisons now contain more inhabitants than any American city save New York, Los Angeles, and Chicago. And yet there is no “prison correspondent” at any of the nation’s major newspapers. This isn’t entirely the papers’ fault. Even if reporters were sent to the prisons, they could be denied entry: the Supreme Court has ruled that the First Amendment does not prevent prison authorities from barring the press.

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It’s impossible to tell the story of American incarceration without also telling the story of American racism. Unlike most leftwing stories about racism, though, this one isn’t about the South, and it isn’t even really about American conservatism. After slavery and Jim Crow came the Great Migration, urban riots, and the war on drugs. The history of the prison crisis is largely a story about progressive politicians—liberal Republicans and centrist Democrats—supporting “tough on crime” policies to protect their right flank, both for self-preservation and to propel other progressive priorities. The prison crisis was something that we ourselves created, law by law, decision by decision, state by state.

One of the original flash points was Detroit. In 1967, riots broke out after city police arrested eighty-four revelers at a party given for a pair of African American veterans who had just returned from Vietnam. Lyndon Johnson sent in an army division to pacify the city, resulting in forty-three deaths and the destruction of 2,000 buildings. In the following months, tens of thousands of residents from the city’s Caucasian enclaves hurtled across 8 Mile Road to the suburbs; they never came back. The following year, as the war in Vietnam escalated, Johnson declared he would not seek reelection, throwing the Democratic nomination to the cheerful but ineffectual Hubert Humphrey. That November, after a bitter campaign fueled by racial antagonism, the country elected Richard Nixon. For the first time in history, the Democratic candidate had failed to secure a majority of votes from the old Confederacy.

There followed a thirty-five-year period of “tough” crime laws. They began in New York State, with Nelson Rockefeller, the liberalish governor who, having failed three times to secure the Republican presidential nomination, decided he would make drug policy his peace offering to the party’s right wing. Previously an advocate of treatment programs and community supervision, Rockefeller abruptly changed course in 1973, innovating harsh mandatory minimum sentences for both the sale and possession of illegal drugs. In the next thirty years, New York’s prison population sextupled, climbing from 13,400 prisoners in 1973 to 71,500 prisoners in 2000.

The pattern soon repeated itself across the country. As whites abandoned the cities, their governors and legislatures enacted increasingly tough sentencing laws for the minorities left behind. In 1978, in what he would later call the biggest mistake of his life, Michigan’s governor, William Milliken, an embattled moderate Republican from the state’s desolate north, signed the 650-lifer law, a Rockefeller-inspired provision mandating life sentences for anyone caught in possession of 650 or more grams of cocaine or heroin. Only 200 people have served the life term, apparently because most big cases get transferred to federal court. (It’s still terrible, though: 85 percent of those sentenced under the provision had no prior criminal record.)

The new sentencing policies did little to discourage criminals. The same summer that Milliken signed his life-sentence law, an ambitious group of teenagers met on the playground of Birney Elementary, on Detroit’s west side, and founded Young Boys Inc., the first professionalized multicity drug-dealing ring in the United States. Within two years, YBI was pulling in $300,000 a day selling heroin in Detroit and other cities. Many of their clients were Vietnam veterans, tens of thousands of whom had become addicted to opium overseas. YBI’s crucial innovation was to distribute their product through a network of hard-to-prosecute juveniles, “corner boys” as young as 12 years old. They were also among the first to use limitless violence to terrorize and execute rivals. As the auto industry collapsed, the market for heroin grew more and more robust. By the mid-’80s, police activity had loosened the grip of YBI’s founders; by that time, though, the corner-boy and murder-the-competition model had spread to every major city in the United States.

And then came crack. Crack democratized the consumption of cocaine by providing a cheap and easy delivery system—smoking—for a highly addictive, high-demand product. Economists have labeled crack a “technological shock,” comparing the dislocations it triggered to the impact of computer chips, or mechanized agriculture. Unlike computer chips and mechanized agriculture, however, crack’s impact was entirely negative. This was not so much because crack was physically harmful—though it was—but more because it was illegal, and highly profitable. Within years of its introduction, the homicide rate for young black males had doubled. The inner city experienced a spike in weapons arrests, fetal deaths, low-birth-weight babies, and children in foster care. Between 1984 and 1994, the death rate for young black males reached 1 percent—double the rate of soldiers fighting in Iraq. A small part of this was caused by crack overdoses. A very large part was caused by a homicidal dialectic of black-market violence and state-sponsored reprisal, a dynamic sustained by popular hysteria and irresponsible media.

The media had never met a story they liked as much as crack, which involved gangs, guns, scary minorities, urban poverty, addiction, and, crucially, babies. Fetuses incubated in crack-exposed wombs were supposed to furnish a generation of “superpredators”—brain-damaged reprobates who wouldn’t be able to tell right from wrong. Although we now know the “crack baby” is a mythical creature—children of crack addicts do not exhibit developmental problems above and beyond those normally experienced by children whose fathers are dead or in prison—the image set off a moral panic in the 1980s, leading the country to begin the unusual practice of incarcerating large numbers of women. In 1986, two months after college basketball star and number two NBA draft pick Len Bias died of an ordinary cocaine overdose erroneously pinned on crack, Newsweek declared crack the biggest story since Watergate and Vietnam. Nancy Reagan was interested in crack, too, and the White House spent $2 billion on equipment and personnel to fight the epidemic, including staff hired to amp up anxiety about the drug among the press.

In the 1990s, the action shifted to the states, twenty-four of which enacted some version of a “habitual offender law,” more colloquially known as a “three strikes” provision. Even more than mandatory minimum sentences for drug offenses, three strikes laws have been responsible for geometric growth in the prison population. Though details vary depending on where you look, the vengeful theory underpinning the laws is universal: repeat offenders need to be removed from society. As a result, defendants have been given life sentences, which cost taxpayers as much as $1 million, for crimes as minor as stealing golf clubs from a sporting goods store or videotapes from Walmart. By 2003, 127,677 Americans were serving life sentences, an 83 percent jump in eleven years.

As of 2005, the last time a census was taken, there were 1,821 prisons in the country. Maine had just seven, while Texas had 132. Of these 1,821 prisons, 347 were maximum security. Most countries don’t have “supermax” prison facilities like we have in the US, where Alcatraz model of remote, nightmare fortress has become increasingly popular with the passage of time. Inmates in maximum security facilities are more vulnerable to rape, which may seem counterintuitive. The risk of rape, though, increases as prisoners lose control over freedom of movement. In minimum security prisons, it’s easier to find protection in a crowd. On the other hand, maximum security prisons are also distinguished by their willingness to put inmates into solitary confinement for extended periods of time, sometimes decades. Many psychologists now believe that such a long period in solitary inevitably leads to insanity. On the plus side, those prisoners will not get raped, or at least not by inmates.

Meanwhile, back on the battlefield of the war on drugs, crack continues to be consumed in nearly the same quantities as in 1990. But a huge price drop destroyed the handsome margins of the crack trade and virtually eliminated the violence associated with it. The crack-crime epidemic is gone, but the incarceration complex it fomented lives on. As a result, one in three black baby boys can expect to spend part of his life in prison.

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Once you go to prison, you never really come back. Beyond incarceration’s immediate physical and mental horrors, after being convicted of a felony, your public life is functionally over. In many states, you won’t be able to vote or sit on a jury. You won’t be eligible for public housing or food stamps. You’ll find it very difficult to attend a college, and may find it nearly impossible to get a job—like everyone else, educators and employers discriminate against ex-cons.

Finding a job is a particular problem, not only because criminals often leave prison with a large amount of debt—from court fees, conviction penalties, probation fines, and especially from child support bills, which continue to accumulate while convicts are in prison—but also because steady employment is itself often a condition of parole: a diabolical catch-22. As scholars have noted, the situation calls to mind the “vagrancy” laws passed in the South in the wake of reconstruction, which made it illegal to be unemployed while black vagrantswere arrested and forced back onto plantations, this time as convicts rather than slaves. An ex-con who fails to land a job may end up back in prison for violating parole. Since service-oriented occupations are usually out of the question, ex-cons are often forced to seek industrial and construction jobs far from urban centers. This puts a large number of people in the position of having to take long, expensive taxi rides to show up for low-wage jobs that don’t even cover transportation costs.

The United States now spends some $200 billion on the correctional system each year, a sum that exceeds the gross domestic product of twenty-five US states and 140 foreign countries. An ever-increasing share of domestic discretionary spending, it would seem, is devoted to building and staffing earthly hells filled with able-bodied young men who have been removed from the labor force. If we added up all the money federal, state, and local governments invest in the poorest zip codes through credits and transfer payments—food stamps, Medicaid, teacher salaries, et cetera—and balanced that against all the value the government extracts from those zip codes through sin taxes, lotteries, and the incarceration complex, we might well conclude that the disinvestment outweighs the investment. Any apparent gains made in the last thirty years in narrowing the employment and education gap between African Americans and whites vanishes once you include the incarcerated population. Before asking the government to spend a fortune improving student-to-teacher ratios, it may be prudent to first ask the government to stop devoting public resources to ripping the heart out of inner-city economies.

Of course, not everyone has made out badly from the country’s prison-construction binge. Telephone companies run up impressive profits from prisoners forced to call collect. Defense contractors have signed lucrative contracts selling paramilitary equipment to local law enforcement agencies. Rural communities have benefited most of all. Not only does the criminal justice sector employ 2 million people, including more than 500,000 correctional officers, most of them in rural areas, it also helps to inflate the local population of prison zones for the purposes of congressional districting and social spending. Schoolchildren learn that in 1787, slave-holding states reached a compromise with free states that allowed nonvoting slaves to count as three-fifths of a human for the purposes of apportioning congressional seats. Counting a slave as a fraction of a man seems like a vivid manifestation of the way the United States dehumanized Africans. Today, thousands of people are removed from urban districts, where public money is urgently needed, and shipped upstate, where each counts for a full person. In this way, prisoners bolster the voting power of rural districts, while being unable to vote themselves. Perhaps this is the reason why, as criminal justice surveys indicate, rural whites form by far the most punitive demographic.

Certain breeds of urban dwellers benefit, too. In gentrifying sections of Brooklyn, for example, steep drops in crime, combined with the virtual depopulation of entire city blocks, has underwritten a real estate boom. In neighborhoods like Fort Greene and Clinton Hill, wealthy people with children have reaped the benefits of climbing land values from apartments they never would have bought had it not been for the removal of tens of thousands of locals from adjacent areas. Neighborhoods like Bedford-Stuyvesant show the population exchange in its purest form. As African American Brooklynites are exported upstate for involvement in petty drug crimes, twenty-somethings reared in prison towns migrate south and reoccupy the same areas vacated by prisoners. Often, of course, the new inhabitants proceed to consume and sell the very same drugs that got the previous tenants into trouble. Since they’re white, they do so with impunity.

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What would it mean to “reform” the prison system? Despite the best efforts of the moneyed elite and its institutional avatar, the Republican Party, the credentialed elite that controls the White House has succeeded in making progress on multiple reformable domains, including credit markets, the health care system, and public education. These are important, high-stakes achievements, and, as we have seen, no good deed goes unpunished. But America’s incarceration crisis is not a reformable problem. It cannot be addressed by a hectoring Rahm Emmanuel, or a priggish Olympia Snowe; it will not be solved by a supercommittee, or a gang of six.

The US prison system doesn’t need reform—it needs to be abolished. Like slavery in the 19th century, and civil rights in the 20th century, prison abolition in the 21st century can only be accomplished by a popular movement as radical and uncompromising as the movement that set up the prison regime in the first place.
We can start by reevaluating our priorities. There’s no use saying that progressive goals aren’t in competition with one another. They very surely are, and criminals have lost that competition again and again, with tragic results. For decades, politicians from Nelson Rockefeller to Bill Clinton to Barack Obama have sold out criminals in order to win concessions on health care, abortion, gay rights, early education, progressive taxation, and any number of other worthy objectives. Prison abolitionists must now perform the reverse procedure—we must be ready to sacrifice the traditional progressive agenda on the altar of criminal justice. Morality, like politics, starts at the edge of Ockham’s razor: the bad can no longer be allowed to obscure the evil.

The movement to abolish the death penalty is venerable and well-funded. Although it wasn’t successful in preventing the execution of Troy Davis, it’s helped a number of inmates get off death row through DNA evidence, and has arguably had decent success in the last fifteen years in shifting public opinion away from state-led killing. Hundreds of highly qualified, well-educated people devote their lives to trying to eradicate an unethical practice and a national embarrassment.

Compared with the horrors of garden variety American incarceration, though, the death penalty can be viewed only as a distraction. An extremely small number of people are executed in the United States—fewer than thirty a year, on average, in the last three decades. But at any given moment, a full 7 million people are under some form of regular surveillance from the correctional system. More African Americans are in prison today than were enslaved in the 1850s. Back in the early ’70s, before things got really bad, the United States had a decently large and energetic prison abolition movement. Why this movement has nearly disappeared—Angela Davis, a University of California professor and former imprisoned Black Panther, is virtually the only abolitionist left—even as the prison crisis has become more severe, is difficult to answer. The timing, though, suggests that the death penalty may have something to do with it—after execution was reinstated in 1976, many activists who might have spent their lives focusing on prisons switched their attention to a narratively vivid but politically minor bugaboo.

And yet the death penalty does offer one interesting benefit, from the point of view of prison abolition, because the first question any prison abolitionist needs to answer is what we’re supposed to do with violent criminals. An important part of that answer has to be that we must simply put up with an increased level of risk in our daily lives. But what about Charles Manson? Surely something must be done to prevent Charles Manson from chopping up celebrities.

If, in the popular imagination, the primary purpose of prisons is to keep us safe from (the vanishingly small number of) people like Charles Manson, then we should simply kill Charles Manson. Prison abolitionists should be ready to advocate a massive expansion of the death penalty if that’s what it takes to move the discussion forward. A prisonless society where murderers were systematically executed and rapists were automatically castrated wouldn’t be the most humane society imaginable, but it would be light-years ahead of the status quo. (Interestingly, unlike rape, homicide has one of the lowest recidivism rates of any crime—you can only murder your wife once—suggesting that death row inmates may pose less of a security risk than other categories of offenders.)

Gun control is another area where progressive energies have been wasteful and counterproductive. “Centrists” of any persuasion will try to tell you that most people don’t actually want their fellow citizens running around with guns, but gun control appears to be one area that really has cost the Democratic Party a large number of one-issue voters over the years. In any case, you’ll have a hard time convincing anybody that we should abolish prisons and take away the community’s ability to defend itself. Even on its own terms, gun control is not a straightforwardly progressive matter. The war on guns bears important similarities to the war on drugs—both are used as pretexts for searching, arresting, and imprisoning ethnic minorities. Gun control, like drug control, doesn’t do much to restrict supply—instead, it creates a black market for the product regulated through violence. In many states, obtaining a gun license is expensive and complex: we’ve essentially made it legal to own a gun if you’re wealthy and white, and illegal to own a gun if you’re poor and black. Years are added onto criminal sentences because unregistered guns are spotted on the premises, even if the guns have never been used. The only way to sustainably curb the supply of guns is to reduce demand for guns, and the easiest way to do that would be to legalize narcotics.

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On May 23, 2011—the same day the morning papers rejoiced over another year of crime reduction—the Supreme Court ordered the State of California to release 45,000 prisoners. In a 5-to-4 decision written by Anthony Kennedy, the Court declared that overcrowding in the state’s penitentiaries had become so severe that simply existing in the system violated a prisoner’s Eighth Amendment right of freedom from cruel and unusual punishment.

As a news story, the ruling generated surprisingly little attention—a good deal less than the Court’s 2008 decision banning the death penalty for child rapists— but in legal circles it caused a panic. Antonin Scalia, in a fiery dissent, called it “the most radical injunction issued by a court in our nation’s history.” Samuel Alito predicted the ruling would generate a “grim roster of victims,” anxiously noting that the quantity of prisoners mandated for release added up to “two army battalions.” In the early ’90s, Alito pointed out, a similar order issued by a federal judge in Philadelphia liberated some 10,000 prisoners: within 18 months, 2,748 of the prisoners had been rearrested for theft, 2,215 for drugs, 1,113 for assault, 959 for robbery, 751 for burglary, 90 for rape, and 79 for murder. California, Alito suggested, should gear up for an enemy invasion.

As the prison population has expanded, the ex-prisoner population has expanded, too, rising from 1.8 million in 1980 to 4.3 million in the year 2000. Every year, 650,000 prisoners are released from American prisons. Just as new prisoners tend to come from poor, urban neighborhoods—in New York, 75 percent of inmates come from just seven neighborhoods: Harlem, Brownsville, East New York, South Bronx, South Jamaica, Bedford-Stuyvesant, and the Lower East Side—released prisoners cluster in a limited set of urban enclaves. This isn’t to say that everyone goes back to where they came from—many ex-cons, especially those who lack supportive families, specifically avoid their home neighborhoods. According to surveys, many believe they’ll be less likely to engage in renewed criminal activity with a change of scenery.

Within three years, 70 percent of released prisoners are rearrested, and half are back in prison. A large portion of these “recidivists” haven’t committed new felonies—they’ve simply violated the terms of their parole. California, which is especially adept at throwing parole violators back in prison, ends up reincarcerating two thirds of released prisoners within three years.

Of course, many released prisoners do commit new felonies, and the evidence is clear that releasing prisoners raises the crime rate, just as imprisoning criminals lowers it. The impact in both directions is relatively small, though. One study showed that during any given year in the ’90s, the net increase in the number of ex-offenders circulating in the general population accounted for 2 percent of property crimes and 2.5 percent of violent crimes. The effect was higher for murder and robbery, though. Fourteen percent of murders and 7 percent of robberies were attributable to prisoner releases in 1994. And that’s only the new releases—the fraction of murders committed by the entire ex-offender population was much higher. On the other hand, released prisoners are subject to considerably more state surveillance than most people, and while it’s safe to assume that ex-cons commit crimes at a higher rate than those who have never seen the inside of a prison, they are also more likely to be investigated and rearrested than someone who was never on the police’s radar to begin with. Released prisoners also have fewer noncrime options: getting a job without family or social connections is virtually impossible for them.

The prospects for California’s released prisoners, therefore, are not good. Neither are the prospects for the state. The likelihood is high that most of these released prisoners will be back in jail within three years, and California may very well be back in court for overcrowding its prisons. (The state is hoping to preempt the issue by transferring inmates to county jails in lieu of early release, but it isn’t clear that crowded jails are any more likely to survive judicial scrutiny than crowded prisons.) To reduce its prison population, California will have to do more than release prisoners—it will have to stop creating new ones.

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When evaluating the impact of the war on drugs on the country’s incarceration crisis, it helps to keep in mind a statistical nuance: a large fraction of prison sentences are for nonviolent drug offenses, but a small fraction of the prison population is in for a nonviolent drug crime. This is because, despite the harshness of mandatory minimum sentences, drug criminals don’t spend nearly as much time in prison as other kinds of criminals.

It’s tempting to believe that we could free most of the prison population simply by liberating nonviolent drug offenders. Nonviolent drug offenders are “innocent”; they haven’t hurt anybody. Advocating on behalf of criminals is much easier when they haven’t committed any violent crime. And yet this misses the point of the prison crisis: you cannot relieve the suffering of the prison population without increasing safety risks for the rest of us.

And increasing those risks, from a moral standpoint, is the right thing to do.

What would happen to California’s criminal community, once freed from the ping-pong of prison and parole? They would continue being criminals, in all likelihood, breaking and entering, stealing cars, selling drugs, and—very occasionally—taking lives. This would be difficult and painful, both on the individual level for the victims and on a social level more broadly; economic and cultural shocks accompany any kind of population exchange, and a massive jailbreak will likely result in a period of strain and disorganization for inner cities. Over time, though, things will settle. There will be more fathers around, and more state money for things like education and health care.

The incarceration complex, like a civil war or foreign occupation, institutionalizes economic dislocation, making chaos and uncertainty a defining feature of the life cycle. Crime, on the other hand, causes disruptions that are smaller and more manageable. Despite the near-infinite capacity of the human spirit to deal with routine desperation, the residents of East Harlem will never “adapt” to a community life structured around prisons, because uprooting communities is the very function and purpose of incarceration. The capacity of New York residents to absorb higher levels of crime in daily life, on the other hand, is nowhere near its limit.

In all likelihood, dismantling or sharply contracting America’s prison system would make the country feel more like the United Kingdom. In the UK, only 3 percent of crimes result in a prison sentence. In the United States, the figure is closer to 18 percent. London is a more dangerous city than New York. Your likelihood of getting robbed or assaulted is higher there. For educated, middle-class whites unlikely to get in trouble with the police, London is, in some ways, a tougher place to raise children.

On the other hand, life spans are longer in the UK; social mobility is more fluid; racial disparities are smaller; the AIDS crisis is better-controlled; and neighborhoods are more cohesive. Despite some slippage in the last decade, the UK never had the prison boom we experienced in the US—Margaret Thatcher didn’t allow it. Confronted with a crime and drug abuse rate that is high by European standards, London attacked the problem on the front end, installing thousands of CCTV security cameras and hiring thousands of bobbies to discourage lawbreaking. Compared to the United States, they do little in the way of punishment.

Abolishing prisons and releasing all the prisoners would amount to a deregulation of criminal punishment. It would mean letting the private sector determine how best to prevent ourselves from getting robbed. In high finance, the laissez-faire approach has proved to be a disaster; for petty crime, it would be a boon.

If ever there were a time to launch a coordinated assault on the prison-industrial complex, the time is now. Budgets are strained, voters are angry, and crime is low. The Tea Party is in the midst of convincing everyone that government is the enemy— and so it is, in the field of criminal justice.

Popular resentment against an authoritarian state shouldn’t be denied or pooh-poohed— it should be seized and marshaled toward progressive ends. The prison crisis was created by centrists. Limited reforms and immoral moderation will not end the crisis. Prisoners and ex-cons, the most abused population in United States, will have to rely on political extremists, on both the left and the right, to turn the page on what will one day be recalled as one of American history’s darkest chapters.