May 2011, Week 4


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Fri, 27 May 2011 22:12:38 -0400
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Michelle Alexander on California's 'Cruel and Unusual'

Liliana Segura
May 26, 2011

On May 23, the US Supreme Court handed down a 5-4
decision ordering California to release tens of
thousands of inmates from its overcrowded prisons on the
grounds that their living conditions-including lethally
inadequate healthcare-were so intolerable as to be
"cruel and unusual punishment." For years, California
has stored its prisoners like so many cans of soup;
stacked in cells or bunk beds in squalid conditions that
breed violence and disease. A 2008 NPR report on massive
overcrowding at San Quentin State Prison found 360 men
caged in what was once a gymnasium: "Most of these men
spend twenty-four hours a day, seven days a week in the
gym," NPR reported, describing it as "a giant game of
survivor." The day before the Supreme Court ruling, four
prisoners were seriously injured at San Quentin when a
riot broke out in a dining hall.

Prison numbers have dipped in recent years, but with
nearly 2.4 million Americans behind bars, mass
incarceration remains a national crisis. In California,
home of a notorious "three strikes" law, parole
violations represent more than half of all new prison
admissions, and three of four prisoners are non-white.
It's an extreme example of what has happened across the

Michelle Alexander, a former ACLU lawyer in the Bay Area
and author of The New Jim Crow: Mass Incarceration in
the Age of Colorblindness, has pointed out that the rush
to incarcerate has gotten so out of control that "if our
nation were to return to the rates of incarceration we
had in the 1970s, we would have to release four out of
five people behind bars." Arriving in California for a
series of events just after the decision came down,
Alexander spoke to me over the phone about the ruling
and what it means.

Liliana Segura: What has the response been in California
to this ruling?

Michelle Alexander: I have seen in the media here a fair
amount of fear-mongering. At least one law enforcement
official [Mark Pazin, the Merced County sheriff and
chairman of the state's sheriffs' association] was
saying that he was worried that there would be a
"tsunami" of crime that would wash over communities in
California. "We're bracing for the worst and hoping for
the best," he says, projecting to the public that they
ought to be very worried that all of these criminals
busting loose from prison may well wreak havoc on their

What is most disturbing to me about this rhetoric is
that it fails to acknowledge that all of these people
were coming home anyway. It creates the impression that
people who are returning home to these communities
wouldn't have been but for the Supreme Court ruling. And
if there's any reason to be concerned about potential
crime when they return, it's largely due to the legal
barriers that exist to effective reentry into
communities. People return home from prison and face
legal discrimination in virtually all areas of social
and economic and political life. They are legally
discriminated against employment, barred from public
housing and denied other public benefits.

Liliana Segura: Governor Jerry Brown has planned to
address California's budget issues by transferring a
bunch of state prisoners to county jails, and the head
of the California corrections system says that "our goal
is not to release inmates at all." Part of what is
interesting about this decision is that Justice Anthony
Kennedy mentioned the "lack of political will in favor
of reform." Is it always going to be politics that
stalls even incremental changes?

Michelle Alexander: I think this opinion illustrates how
broken our politics have become. Here we are in
California, a state that has been careening toward
bankruptcy, and yet there is enormous resistance to
releasing nonviolent, relatively minor offenders, people
who, I think it's important to emphasize, might not have
been doing time at all if they had been arrested thirty
years ago. We now sentence people to prison for years
for types of offenses that once received just probation
or days in jail. So these people who we're so afraid of
returning to our communities, they might well not have
been serving time at all had they been arrested a few
decades ago, before the War on Drugs and Get Tough
movement really kicked off.

Liliana Segura: Activists often say that real change is
not going to come from the courts. On the other hand,
some have described this decision as quite momentous.
Jonathan Simon, a law professor at Berkeley, wrote,
"This is the first decision to move beyond evaluating
prison conditions to place mass incarceration itself on
trial." How significant is this decision and what are
the implications beyond California?

Michelle Alexander: I think it is a very significant
decision, although, as a number of commentators have
observed, there's not likely to be a lot of copycat
legislation because the conditions in California were so
extreme. You had documented cases of people dying on a
weekly or monthly basis simply because of inadequate
access to healthcare. But that isn't to minimize the
significance of the decision. It does signal that mass
incarceration has become unmanageable for states that
are facing severe economic crises.

I think it's important to note, though, that Justice
Kennedy said, Look, if California just built more
prisons, then the Eighth Amendment would not be violated
here. But because it can't afford to do so, it must
begin releasing some people. But once states can afford
again to lock people up en masse, there's nothing in
this decision that precludes mass incarceration. What it
precludes is such severe overcrowding that it literally
threatens the lives of the inmates that are housed
there. And the amount of reduction that is called for in
the opinion isn't that dramatic. Which is why some
officials are arguing, Oh, well, maybe we can absorb
those who are ordered released from prison in other
ways. If they find a way to do that, then the practical
impact of the decision will be minimal.

The Supreme Court has stood quietly by in the era of
mass incarceration. And in fact, to the extent that
they've raised their voices at all, it has only been to
facilitate the War on Drugs. The US Supreme Court has
eviscerated Fourth Amendment protections against
unreasonable searches and seizures, giving the police
license to sweep communities, to conduct "stop and
frisk" operations. The Supreme Court has made it nearly
impossible to prove race discrimination in the criminal
justice system. Only now that states are faced with such
severe economic crises that they are unable to build
enough prisons to house inmates without risking their
lives does the Supreme Court step in and say, Well, if
you can't afford to build more prisons, then you're
going have to start releasing some people.

I think what's clear here is that it's going to take a
grassroots movement to force politicians to respond
rationally to problems related to crime and mass
incarceration. This economic crisis does create an
important window for advocacy-and advocates should seize
this moment of opportunity-but they must do so in a way
that builds a grassroots movement for the end of a
system as a whole.

Liliana Segura: The thought of creating that movement
becomes very daunting when you to consider the average
American's perception of prisoners. How do we convince
people that prisoners deserve basic rights and that this
should be an issue we should organize around?

Michelle Alexander: I think one of the biggest barriers
to movement building today is that there's so much myth
about crime and the reasons for the explosion of our
prison population. There must be major education to
dispel the myths that sustain the system; the myth that
explosion has been driven by crime rates. It's not true.
The myth that the War on Drugs has been aimed at rooting
out violent offenders and drug kingpins. Not true. The
myth that poor folks of color are more likely to use and
sell illegal drugs than white folks. Not true. There
really has to be an effort in schools and churches and
mosques and community centers to engage in the kind of
consciousness-raising that will open up a political
space in which movement-building work can be possible.

The other front of the work that has to be developed is
how to move beyond this piecemeal policy reform work
that has been done over the last thirty years to work
that is more transformative, so that we're not just
tinkering with the system but instead are galvanizing a
grassroots movement, one that is contagious and can be
replicated in cities and communities nationwide. I
believe it's possible. The same way that many people
said, Oh Jim Crow is never going to die, it's too deeply
entrenched. I believe it is possible to bring an end to
mass incarceration and birth a new moral consensus about
how we ought to be responding to poor folks of color and
a consensus in support of basic human rights for all.
But it is going to take some work.


About the Author
Liliana Segura is Associate Editor of The Nation. She
also writes about prisons and harsh sentencing.


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