American criminal justice has undergone a sad odyssey over the last 175 years. In the early nineteenth-century, when Alexis de Tocqueville arrived to study American prisons, American criminal punishment was regarded as a model for the civilized world. Today, by contrast, America is widely regarded with horror. What happened? This Article focuses on some Tocquevillean themes. The roots of the harsh criminal punishment regime of the contemporary United States have to do with some of the aspects of "Democracy in America" that Tocqueville found most entrancing. These include traditions of popular sovereignty, religious freedom and social equality. It may be painful for Americans to acknowledge the possibility that some of their most cherished ideals may have ugly consequences for criminal punishment, but they must do so.

This paper follows Jeremy Bentham in holding that because punishment, even when not corporal, is pain, the state administration of punishment is inherently evil. Too many defenders of punishment see the deliberate infliction of pain as not evil at all, but rather as the justice due the criminal. The paper proposes that punishment is the lesser and necessary evil, and not justice, which is a positive good free of evil. The US Constitution teaches the proper democratic attitude towards punishment, which is that punishment should be done reluctantly and leniently. All the provisions of the criminal law in the document go in the direction of reluctance and leniency. One principal enemy of this spirit is the doctrine of retribution, as defended by Leviticus, Kant, and JS Mill. A critique is offered of this doctrine; deterrence is left as the basic justification for punishment, especially in a constitutional democracy.

Since the modern era, the discourse of punishment has cycled through three sets of questions. The first, born of the Enlightenment itself, asked: On what ground does the sovereign have the right to punish? Nietzsche most forcefully, but others as well, argued that the question itself begged its own answer. The right to punish, they suggested, is what defines sovereignty, and as such, can never serve to limit sovereign power. With the birth of the social sciences, this skepticism gave rise to a second set of questions: What then is the true function of punishment? What is it that we do when we punish? From Durkheim to the Frankfurt School to Michel Foucault, twentieth century moderns explored social organization, economic production, political legitimacy, and the construction of the self-turning punishment practices upside down, dissecting not only their repressive functions but more importantly their role in constructing society and the contemporary subject. A series of further critiques--of meta-narratives, of functionalism, of scientific objectivity--softened this second line of inquiry and helped shape a third set of questions: What does punishment tell us about ourselves and our culture? What is the cultural meaning of our punishment practices? These three sets of questions set the contours of our modern discourse on crime and punishment.

What happens now- now that we have seen what lies around the cultural bend and realize that the same critiques apply with equal force to any interpretation of social meaning that we could possibly read into our contemporary punishment practices? Should we continue to labor on this third and final set of questions, return to an earlier set, or, as all our predecessors did, craft a new line of inquiry? What question shall we-children of the twenty-first century-pose of our punishment practices and institutions?

This essay suggests that the form of the question never really mattered. In all the modern texts, there always came this moment when the empirical facts ran out or the deductions of principle reached their limit-or both-and yet the reasoning continued. There was always this moment, ironically, when the moderns took a leap of faith. And it was always there, at that precise moment, that we learned the most: that we could read from the text and decipher a vision of just punishment that was never entirely rational, never purely empirical, and never fully determined by the theoretical premises of the author. In each and every case, the modern text let slip a leap of faith--an ethical choice about how to resolve a gap, an ambiguity, an indeterminacy in an argument of principle or fact.

It is time to abandon the misguided project of modernity. Rather than continue to take these leaps of faith, it is time once and for all to recognize the critical limits of reason, and whenever we reach them, to rely instead on randomization. Where our facts run out, where our principles no longer guide us, we should leave the decision-making to the coin toss, the roll of the dice, the lottery draw-in sum, to chance. This essay begins to explore what that would mean in the field of crime and punishment.

The current U.S. incarceration crisis can be profitably understood by examining what, how and whom we punish and with what consequences. The papers in this section of the volume take up "just" the what and how, but there is much here to absorb us. There is much to be asked and much to be said about what we punish. Can the current incarceration crisis be explained by the criminalization of more types of (mis)conduct than we punished in the past? Or is the contemporary mass incarceration predicament better explained by enhanced enforcement (arrest, conviction, sentencing) of conduct that has long been criminal?

If I am correct that today's mass incarceration cannot be explained by a shift in what (mis)conduct we punish, then the explanation of the massive increase in jail and prison population is greater enforcement (arrest, prosecution, sentencing) of certain criminal laws that have long been on the books. Turning to how we punish focuses attention on sentencing jurisprudence and sentencing practice. There is an assumption, well reflected at this conference and on this panel, that sentencing theory holds decisive consequences for jail and prison populations. There is no doubt that criminal sentences became more severe during the 1970s, 1980s and 1990s. Proportionately more convicted misdemeanants and felons were placed in confinement and for longer terms. However, more punitive sentencing itself can (and, in my view, ought) to be treated as a dependent variable.

I think that the better explanation for more severe sentences is to be found in a basic shift in American politics to the right. The same socio-political forces that led to sweeping electoral victories for Ronald Reagan also led legislators, prosecutors, judges and the citizenry generally to see and perhaps experience greater punishment as an appropriate and satisfying response to diffuse socio-political anxieties. If the reigning zeitgeist is characterized by fear of and disdain for "criminals," sentences will be more severe whatever a jurisdiction's formally stated sentencing philosophy. In other words, there will be severe sentences in a jurisdiction whose formal law calls for emphasis on rehabilitation just as there will be severe sentences in jurisdictions whose formal law prescribes emphasis on punishment and/or incapacitation.

The aim of this essay is to look at where the American punishment system has been in hopes of finding lessons that can help shape where it goes. There are four sections. The first, short because it covers much trodden ground, sketches the reasons why indeterminate sentencing imploded and some of the ideas, proposals, and policies to which the implosion gave shape. The second, not much longer, sketches prevailing explanations for why the policies of the past quarter century took the shape they did, and concludes that most are unconvincing. The third demonstrates that prevailing ways of thinking about punishment are obsolete and incapable either of encompassing current policies and practices or of guiding development of emerging 21st century punishment systems. The last immodestly sets out some of the elements of new ways of thinking that may do a better job.

Over the last forty-five years, there have been three monumental stories on the national American crime scene: a run up in crime in the 1960s, a move towards a more punitive American justice system starting in the 1970s, and a strong decline in US crime rates beginning in the 1990s. At the center of understanding these three stories lies Gary Becker's pioneering work on the economics of crime (1968). Becker offered a price theoretical model in which criminals are viewed as rational actors seeking to maximize their benefits in choosing certain criminal actions while minimizing their costs. Becker's model has not only shaped academic debate on the topic of criminal behavior since the 70s, but it has also had a powerful impact on governmental policies regarding crime and justice. Most significantly, Becker's work—with some of its nuance overlooked—ended up providing intellectual backing to the increasingly punitive and harsh nature of the American justice system, as reflected in the massive increases in incarceration levels and the revival of the use of the death penalty.

While Becker correctly predicted that massive increases in incarceration would have a dampening effect on crime, the supporters of this policy have not been attentive to the need to weigh costs as well as benefits in assessing the major prison build-up. Evidence that equal crime reductions could be achieved through targeted social spending merits consideration, since Becker noted that improving the legal opportunities available to potential criminals could be as potent a deterrent to crime as increasing the cost of criminal choices. Furthermore, I review current research in the death penalty debate and argue that—contrary to the positions defended by Becker and many ardent disciples of price-theory— the empirical evidence does not currently support the conclusion that the death penalty as administered in the United States has served as a deterrent to crime.

The decline of the rehabilitative ethos in sentencing theory in the post-1960's is a story that has been told often (see e.g., Allen 1981), and need not be rehearsed here. Penal treatment programs, once tested for their effectiveness, showed scant success - or at most, succeeded only in limited categories of cases. Doubts grew also about the fairness of making the severity of a person's sentence depend upon his responsiveness to treatment. As penal rehabilitation diminished in influence, the key question for penologists and reformers became: what conception of sentencing should follow it? My article, as well as Michael Tonry's (2007) and John Donahue's (2007) in the present volume, is devoted to this question, of the choice of sentencing rationale.

I will focus, particularly, on a sentencing theory that became influential in the late 1970's and 1980's in this country (Tonry 2007) and western Europe (Bottoms 1995; Jareborg 1995; Hörnle 1999), and continues to have considerable influence today (von Hirsch & Ashworth 2005: ch. 1): namely, the proportionalist or 'desert' model for sentencing. I shall address briefly what this theory's main tenets are and how it differs from traditional retributivism; what has made it attractive to liberal criminologists and penal reformers during the last three decades; and whether and to what degree it has continued value and usefulness for the future.

There are two puzzles that confront observers of American capital punishment at the start of the 21st century. One concerns the legal and administrative arrangements through which it is enacted, which strike many commentators as irrational, or at least poorly adapted to the traditional ends of criminal justice. The other concerns the persistence of capital punishment in the USA in a period when comparable nations have decisively abandoned its use. In this essay, I will address both of these two questions, beginning with the first and offering conclusions that bear upon the second.

The historical struggles around issues of capital punishment, structured as they have been by the American polity with its distinctive mix of federalism, sectionalism, and democratic populism, form the necessary basis for understanding the American present and for comparing America's current practices with those of other western nations. Any explanation of American capital punishment ought to begin by focusing attention on these structures and these struggles.

The Social Research conference at which these papers were delivered charged some of the field's most thoughtful researchers and theorists with taking up the question of who we punish. A fundamental point cutting across their remarks is a stubborn social fact: those we punish do not represent a random draw from the general population of citizens. More critically, those we punish do not represent a random draw from the general population of those committing crime. Instead, those we punish are overwhelmingly poor, disproportionately men of color, and disenfranchised in both the literal and figurative sense of the word.

Jonathon Simon provides a social history of the carceral state, from the optimism of the New Deal and Great Society eras to the markedly more pessimistic contemporary period. Scholars such as Bruce Western have conducted painstaking research to document inequalities in U.S. incarceration rates by age, race, and gender. Yet the path from conviction in a criminal court to imprisonment in a state or federal penitentiary is perhaps the least ambiguous form of punishment in the contemporary United States. Writers such as Mark Dow are today documenting America's "immigration prisons" and the experiences of the thousands of immigrants and administrative detainees who languish within them. Lorna Rhodes brings an anthropologist's eye to the design of prisons, from Jeremy Bentham's eighteenth century panopticon to modern American supermax facilities.

Yet despite the prison's "hard" environment and the stigmatization of former prisoners, life course criminology has established that the vast majority of those punished will ultimately leave crime behind. Such work offers an optimistic message of malleability and reform that might well apply to the U.S. record on punishment: just as individual prisoners can change for the better, so too can prison systems.

No piece of the present conjuncture is more alarming than the explosive growth of the American prison population since the late 1970s. The prison has been a critical element of American government (especially at the state level) since the early 19th century, but the mentalities of rule and the technologies of power linked to the prison, have changed several times during that history. Building more prison cells, therefore, does not have the same constancy of meaning that building more tanks or more strategic bombers does. While the prison has played a crucial role in construction of successful political orders since the American Revolution, its role at present is unprecedented. In the current era of the neo-liberal, neo-conservative, post-New Deal state, which we can call for shorthand, the "Carceral State," the prison has become the very meaning of sovereignty: a steel leviathan in which an increasingly hollowed out version of the state comes to rest with brutal force on selected parts of the population.

The growth of penal population through the last decades of the twentieth century reshaped the institutional landscape of American poverty and inequality. The effects of rising incarceration rates have been especially large for young minority men with little schooling. This paper charts the extent of incarceration among young disadvantaged men and describes the effects of the prison boom on American economic inequality.

In this paper I will argue that we are currently living in an era of "mass imprisonment." Under mass imprisonment, the experience of incarceration is so pervasive among some social groups as to be a defining feature of their collective experience-incarceration characterizes the group and influences their life chances. I provide evidence for this claim with estimates of incarceration rates and lifetime risks of imprisonment for recent birth cohorts of white and black men at different levels of schooling. These statistics show that young black men with little schooling became pervasively involved with the criminal justice system by the late 1990s.

This historically novel and highly concentrated rate of incarceration has two profound effects on American economic inequality. First, mass imprisonment generates invisible inequality. Our official statistics and data sources that measure the economic well-being of the population do not count those who are institutionalized. The large labor force surveys that measure the unemployment rate, for example, are drawn from samples of households. Be cause prison inmates are not included in these surveys, employment rates are significantly over-stated among people most likely to go to prison. Once we factor in the effects of invisible inequality through the late 1990s, we see that the economic expansion did very little to improve the economic status of young black men with no college education.

In addition to invisible inequality, incarceration reduces the life chances of ex-inmates after they are released. Through the stigma of a criminal conviction, the diminished human capital from time out of the labor force, and the weakened social connections to legitimate employment opportunities, incarceration reduces the wages and employment of those serving time in prison. Not only does incarceration reduce pay and employment, it also limits the kinds of jobs that are available to formerly-incarcerated workers. Career jobs requiring a high level of trust, skill, credentials, or well-placed social connections are largely out of reach for those with prison records. As a result, incarceration channels ex-inmates into the secondary labor market in which employment is precarious and there are few prospects for mobility. In this way, the growth of the American penal system has hardened the lines of social disadvantage. We usually study prisons and jails in the context of their effects on crime. By calculating the scope of mass imprisonment, the penal system becomes important not chiefly for its effects on crime, but for its effects on social inequality.

Detained immigrants awaiting deportation after criminal convictions have often complained that they are being subjected to double jeopardy since they've already served their sentences. But the truth is their treatment does not even rise to that level: double jeopardy implies being tried twice for the same crime. The immigrants have been tried only once -- and punished twice. The U.S. deports people to countries where they don't even speak the language, having left as young children. And back in Portugal, or Nigeria, or Haiti, or El Salvador, they are often stigmatized as "criminal deportees" -- sometimes, as in Jamaica, publicly and within days of their arrival (Headley, 2005). A deportee's "alien file" is literally handed from the ICE agent on board the plane to, for example, the security agent at the Lagos airport. Penal and punishment have etymological roots in pain as well as fine, which is the ending (fin) of an obligation. For asylum-seekers and established residents, deportation is often not an end at all, but the start of a new and ongoing punishment.

Supermax prisons are often described as "high-tech." Observers seem to mean two things by this. The first is that these "prisons within prisons" are a technology in themselves: hard-edged and brightly lit, the fortress-like supermax clearly signals its specialized purpose of isolation and control. The second is that supermax prisons rely heavily on specialized, relatively new technologies: computerized systems produce new forms of intensive surveillance while special teams armed with electronic shields maintain control over prisoners.

But as Leo Marx observed several years ago in this journal, "technology is a hazardous concept" (1997:965). We need to see the technology of the supermax prison in these terms if we are to understand its effects. My aim here is to consider three aspects of the technology of supermax. The first is the sense in which the supermax prison is itself a "machine" -- a specific invention with a purpose and meaning closely linked to its features as a technology. This aspect is important for understanding what makes the construction of these prisons so attractive to correctional professionals and so seemingly acceptable to the general public. The second aspect is the use of specialized tools of control inside the supermax prison. These internal solutions to problems of order - I will discuss computerized surveillance, special response teams, and stun technology - offer clues to how specific technologies intersect with intensive confinement to frame punishment as decisive "action" produced by prisoners' "choices" and analogous to "war." Finally, supermax technology imposes specific practices and ways of being on both prisoners and prison staff. These need to be understood not only for how they augment and intensify other negative aspects of these environments, but also for their potential to affect prisoners in quite different ways depending on individual vulnerabilities.

A common theme running through my discussion of each of these aspects of supermax is that the appearance of specialized technology constitutes what Garland describes, for penal practices in general, as a "signifying practice" (Garland, 1990: 260). Beyond its immediate effects during use, supermax technology offers the cultural gloss of a "high_tech solution" that helps to frame problems - some of them caused by supermax confinement in the first place - largely in terms of their susceptibility to technical intervention. In other contexts "technology" signifies a "clean," profitable, scientific, and masculine approach: direct action on manageable problems. The spillover of this imagery into prisons - in association with other meanings of crime and punishment - is one element serving to obscure the larger issues posed by mass incarceration. As Marx points out, the reification of technology has the effect of producing an aura of inevitability. I will return to this point at the end to consider briefly how a framing of supermax primarily in terms of technology can itself be seen as hazardous.

The phrase "mass incarceration" is now widely used to describe the current state of criminal justice in the United States. Over the past generation, our rate of incarceration has more than quadrupled. A recent study forecasts that the state and federal prison population will increase by nearly 200,000 individuals in the next five years (JFA Institute, 2007). While our incarceration rate has risen, so too has the rate of people reentering the community from prison. Nearly everyone who goes to prison or jail eventually comes home. Facing a myriad of challenges, the unfortunate likelihood is that many will end up back in prison or jail.

Incarceration and its collateral reentry effects do not occur evenly across communities, classes, races or genders. Individuals returning home often carry public health risks for their communities, such as HIV, Tuberculosis, and Hepatitis C. Incarceration has profound effects on the children of incarcerated parents. The financial costs of incarceration are also enormous.

As we move into the next decade of mass incarceration, in addition to exploring who, why, and how we punish, we must continue asking questions regarding what happens when we punish. We should approach our answers to these questions from the perspective of a broad range of disciplines, including public health, public policy, economics, demography, law, sociology, social work, and others. The articles in this section of the issue represent valuable contributions to that compendium of answers.

Although the prison was originally conceived for the noble purpose of rehabilitating criminal offenders, critics from its very inception worried that the prison was an inherently criminogenic institution, reinforcing the criminal behaviors of its occupants. In this article I focus on an indirect mechanism, elaborating and empirically testing the impact of a prison record/experience on ex-inmates' labor market outcomes, by which ex-inmates will face significantly higher risks of recidivism and hence future prison spells, especially when they are released into weaker labor markets. Specifically, I specify and test a version of the "secondary labor market hypothesis." Because most ex-inmates were mired in secondary jobs prior to their incarceration, I consider the impact of a prison record/experience on their chances of "moving up" to good jobs with higher pay, steadier hours, and greater mobility. In the conclusion I draw out the somber implications of my labor market analyses by examining trends in recidivism rates and their social costs. The evidence suggests that the War on Drugs policies have trapped an increasing number of more marginal drug offenders in the revolving door of recidivism, conventionally defined. It also highlights a new and quantitatively important recidivism risk for released prisoners, the revocation of parole on technical violations. To break out of this vicious cycle, my analysis shows, would demand vast direct government interventions in the labor market. As a more modest first step, I consider policy innovations like drug courts that place marginal drug offenders in treatment programs rather than prison. In illustrating and elaborating my arguments, I focus on the War on Drug policies and on marginal drug offenders. My reasons are several. First, the War on Drugs constituted a true social experiment, an exogenous shift in criminal justice policy that is best understood as a "moral" panic, precipitated in part by the tragic but transitory episode of lethal gun violence in the social regulation of the crack trade. Second, the War on Drugs policies were quantitatively important in instituting the regime of mass incarceration. And finally, these policies indiscriminately incarcerated marginal, not just more serious, offenders.

In this paper, we summarize the various impacts of incarceration with the aim of providing an overview of the ways mass incarceration affects society. In doing so, we look inside the black box of the largest penal experiment in world history: the quintupling of the prison population in the United States between 1973 and 2006. The question is, "What have been the social consequences of our incarceration policy?"

One objective is to provide insight into what might be called the prison policy paradox, namely, that a 500% generation-long growth in imprisonment has had little impact on crime. Answers are provided by looking inside the black box of penal policy and by identifying the various ways incarceration leads to social outcomes that are associated with public safety. The paper considers the problem of "public safety," (as opposed to rates of crime) because safety is a broader concept than crime. Though a desire for public safety includes a desire for low rates of crime, public safety connotes a more profound interest we have to live in a society where we feel secure pursuing our personal goals and fulfilling our life desires Using public safety as our criteria enables us to consider the ways incarceration affects our quality-of-life, especially through the way incarceration affects the informal social relations that promote the kind of profound social control that is a foundation for a sense of feeling safe.

Three types of effects are described. Positive effects are those that improve public safety, negative effects reduce public safety, and "ambivalent" effects have the capacity to be both positive and negative. Five levels of social impacts on public safety are assessed:

I) Effects on individuals that change the way people act;
II) Effects on intimate relationships such as those with families and other loved ones;
III) Effects on social relationships that are felt as community-level outcomes;
IV) Effects on institutions such as labor markets and the political economy;
V) Effects on democracy or social justice.

Thus, the purpose of this paper is to summarize what is known, empirically and experientially, about the positive and negative ways incarceration affects levels of social expression.

The practice of sending parolees back to prison for violations of their parole conditions, which has grown seven-fold over the past 25 years and now contributes significantly to rising prison populations, has escaped rigorous empirical or theoretical analysis. This article suggests that this practice be understood as a form of sentencing ("back-end" sentencing), as a deprivation of liberty for violation of state-imposed rules. Seen through this lens, the practice of parole revocations is particularly vulnerable to critique as failing to meet the standards of sentencing jurisprudence. The article calls for a reexamination of parole revocation policy using a sentencing framework.

By embracing programs that keep more people out of jail, the states may be moving toward what some critics of the prison_industrial complex might call "decarceration lite." But what does the "decarceration'' movement want and how does it plan to get it? Is the goal to forge a social movement to "empty the country's prisons and abolish capital punishment," as Marie Gottschalk puts it her essay. Or, in the words James Jacobs asks, "Is it sufficient for activists to show how costly, dysfunctional and destructive mass incarceration is or is it incumbent upon activists to put forward a strategy, set of strategies or alternative strategies for decarcerating?" Is the goal to reduce the prison population by a specific margin - say five or 25 percent? Or is the goal to move the country away from what Gordon Bazemore as a provocatively describes as its "punishment addiction" toward a new less punative form of "restorative justice." As Jacobs puts it, each goal or strategy suggests different political strategies and controversies. "This is practically virgin territory,'' he writes, Scholars and activists have hardly begun to create a conversation, much less a literature, on the politics and policy of decarceration.'' Perhaps the following papers should be read as the beginning of that conversation.

We suggest that a restorative justice critique of current retributive policy and practice may well be a starting point for the development of more just and more effective approaches to sentencing, both formal and informal, and to a more effective approach to reentry for currently incarcerated persons. While restorative justice principles acknowledge the debt owed by offenders to their victims and victimized communities, this is a debt met neither by inflicting harm on the offender nor by removing the offender's rights as a citizen. As a different normative theory, the measure of justice in a restorative approach is the extent to which harm caused by crime is repaired. While restorative justice may therefore demand a lot of offenders, their supporters, and community members, it also provides for the opportunity for victim input and reparation. Most importantly, the normative theory of restorative justice provides a different currency of repair and healing that could begin to displace the currency of punishment that knows no limits. While a restorative metric would certainly have its own limits and guidelines, the metric of uniformity as the primary gauge of justice process could at least be supplemented with a metric of stakeholder participation, satisfaction, accountability, reparation, and peacemaking.

There is a disconnect between the academy on the one hand, and the public, the Congress, and the courts on the other, with regard to punishment in the United States. The academy has highlighted the extraordinarily troubling implications of the mass imprisonment of the past two decades, the racial disparities, the social dislocation to poor communities and communities of color, the impact on this democracy of felon disenfranchisement, the extent to which retribution has surpassed all other purposes of punishment, displacing any effort to determine "what works" to reduce crime. But the public is barely a participant in these discussions. If it reads the tabloids, watches television, or surfs the internet, it hears an entirely different story, a story about dangerous crime rates and impending doom, a story about fear and retribution. And so long as it hears that story, it will support ever more punitive laws, and rail against judges who are widely perceived to be lenient.

The story is in fact more complex, the proverbial "good news" and "bad news." The good news is that the public may not be as punitive as the media and politicians suggest, if they are given the facts. They understand sentencing and individualized treatment. They can tell the difference between the king pin and the mule, between the postal worker who steals a check and the Enron executive who rapes a company. The bad news is that courts, who know the individual facts, nevertheless face extraordinary pressures to be tough, no matter what the offense.

Nearly one in every 100 adults in the United States is in jail or prison today. In a period dominated by calls to roll back the government in all areas of social and economic policy, we have witnessed its massive expansion in the realm of penal policy since the 1970s. The U.S. incarceration rate is now more than 737 per 100,000 people, or five to 12 times the rate of Western European countries and Japan (Harrison and Beck, 2006, 2; International Centre for Prison Studies, n.d.). The reach of the U.S. carceral state extends far beyond the 2.2 million men and women currently in prison or jail in the United States. On any given day, over 7 million people--or 1 in every 32 adults--are incarcerated or on probation or parole (Glaze and Bonczar, 2006, 1). This rate of state supervision is unparalleled in U.S. history.

These overall figures on incarceration belie the enormous and disproportionate impact that this bold and unprecedented social experiment has had on certain groups in U.S. society. If current trends continue, one in three black men and one in six Hispanic men are expected to spend some time in jail or prison during their lives (Bonczar, 2003, 1). The number of incarcerated African-American men has grown so rapidly over the past quarter-century that today more black men are behind bars than enrolled in colleges and universities (Butterfield, 2002, A_14).[1]

Some contend that growing public dismay over the crushing economic burden of incarcerating and monitoring so many people heralds the beginning of the end of the prison boom (Bennett and Kuttner, 2003, 36). As evidence, they point to recent penal developments in the states. Severe budget deficits prompted by the 2001 recession forced some states to close prisons and lay off guards. Dozens of states experimented with new sentencing formulas, mostly directed at nonviolent offenders.[2] Fiscally conservative Republicans previously known for being penal hard-liners championed some of these recent relaxations in penal policy. This fueled speculation that law-and-order Republicans, troubled by mounting costs, are well poised to roll back the carceral state, much as red-baiter Richard Nixon was ideally situated to breach the great political wall with China.

We should be cautious, however, about assuming that fiscal pressures and the recent softening of public opinion sparked by the plummeting crime rate over the past decade will automatically forge a durable consensus that will dismantle the carceral state.[3] It was mistakenly assumed three decades ago that shared disillusionment on the right and the left with the rehabilitative ideal would shrink the prison population. Instead, it exploded. Criminal justice policies often confound conventional distinctions between left and right, particularly on issues related to crime victims. The relationship between political leaders, social movements, interest groups, and governing institutions is highly contingent and volatile in the case of penal policy because the left-right divide is more blurred and because of certain institutional features of the U.S. criminal justice system and welfare state.[4]

While economic arguments against the carceral state are important and compelling, they have their limitations. If properly pitched, they can help forge a consensus to reverse the prison boom. But they can also be used to propel mean-spirited budget cuts that do not significantly reduce the size of the prison population--or save much money--but do render life in prison and life after prison leaner and meaner. Criminal justice reform to reverse the prison boom is a highly fragile project that cannot be underwritten primarily by fiscal concerns. Without some broader vision and movement for change, the U.S. carceral state, trimmed down a little by a few modest sentencing and drug law reforms, will be here to stay. Such a movement is beginning to coalesce in the United States. Opponents have begun to portray the carceral state not only as a financial liability but also as a moral liability and a pressing civil and human rights issue that perverts cherished democratic institutions, like the right to vote. They have also begun to focus public attention on how the prison boom has exacerbated economic and social inequalities and is a growing menace to public health.

Most present-day scholarship on the carceral state, and practically all of the papers and discussion at this conference, involve analysis of the massive increase in prison population over the last 25 years. What has not yet been systematically explored, and what is meant to be the focus of this final panel, is how to decarcerate. This is practically virgin territory. Scholars and activists have hardly begun to create a conversation, much less a literature, on the politics and policy of decarceration. My experience is that most people begin to think about decarceration as a problem in political persuasion. But that begs the questions: who needs persuading and of what? Even passing attention to the issue suggests that there are many possible paths to decarceration; each of them implicates policy choices and triggers its own political debate.

The unprecedented growth of the prison population in the United States is a result of complex political and social factors that have contributed to more punitive criminal justice policies. While there has been much attention devoted to examining the possibility of expanding the use of alternatives to incarceration as a means of reducing these numbers, there has been insufficient focus on addressing changes in the length of time served in prison as a strategy for reduced incarceration. The sharp increase in time served in prison in recent years has had no significant effect on recidivism or deterrence, but has been very costly and has contributed to the eroding of ties between people in prison and their families and communities.

As U.S. correctional populations have rocketed upward since the 1970s, researchers have quite properly focused attention on prisons and prisoners. Yet examinations of the U.S. punishment record must look beyond prison gates, as criminal justice sanctions also trigger a range of formal and informal collateral consequences. For those so punished, employment restrictions and other collateral sanctions complicate and confound efforts to assume the rights and duties of citizenship.

I here suggest two broad approaches for scaling back some of the deleterious effects of punishment without compromising public safety. The first approach involves reducing the scope and number of collateral sanctions imposed automatically with a felony conviction. The second approach involves creating fewer records in the first place by redirecting low-level offenses away from the criminal justice system.