Governing Through Crime

California has the most prisoners in the nation with some 160,000 people behind bars. California jails [hold] more than double the designed capacity and are so overcrowded that a federal court last month ordered the state to reduce the prison population by more than 40,000 in the next two years. In their ruling, the judges said overcrowding is the primary cause of substandard healthcare and mental healthcare in state prisons. Last week, Governor Schwarzenegger asked for a delay of the order, but was denied.

The ruling comes as California is in the midst of a severe budget crisis. Facing a $24 billion budget deficit this summer, lawmakers agreed to slash penal spending by $1.2 billion. Last week, the State Assembly passed a bill that would reduce California’s prison population by 17,000 in the next ten months. Democrats passed the bill without any Republican support. It now goes to the State Senate. The bill would allow certain prisoners to be released early by completing rehabilitation programs, eliminate parole supervision for some nonviolent convicts, and allow probation violators to be housed in local jails.


In the last thirty years, we have been on a prison building binge. Basically, the dominant public policy in California is that the way we can improve our communities is by putting a large number of our fellow citizens in prison. We’ve gone from about one in a thousand Californians in prison to something closer to one in 200. And in that thirty-year period, we built twenty-two prisons, one University of California campus and one Cal State University, during that entire thirty-year period. So our priorities completely were captured by prisons.

we are the largest state, so the department will point out that our incarceration rate is not much higher than the national average. The point is, though, that that’s a national average that includes the old Confederacy, very high numbers of prisons. California is essentially a—it’s like New York with Alabama criminal justice policies, which means we have a lot of prisoners, and we pay a lot of money for them. And that has created a bankruptcy situation that you don’t find, say, in the South.

As long as there’s been a lot of money to spend in California that generally is tied into our real estate booms, then people have been essentially comfortable with expanding the prison system. And this has really been a coalition of Democrats and Republicans that have built this prison system over the last three decades. With the budget crisis, really for the first time in this thirty years, there’s some serious talk about whether or not we actually can afford this level of incarceration and what job it does for us. My real concern now is that we’re going to find a way to muddle through rather than really revisit this basic strategy of trying to create security through prisons.

The court’s ruling is a huge help in getting Californians to focus on this problem. This is really the end of about a twenty-year cycle of litigation, mostly involving medical care and mental health, that has brought us to this point. The problem is, again, we might be able to muddle through. All the courts can do is order us to have a certain level of care in our prisons or a certain level of confinement capacity. We could decide to build our way out of this crisis, in which case we could spend another couple of decades, you know, eventually starving our education system into really nonexistence.

we need a whole new paradigm change about public safety in the state. We treat public safety as if it equaled prisons. It’s sort of like treating hamburgers as if they were the only food that one could consume. We need police. We need probation officers. We need first responders. We need drug treatment and mental health caseworkers. And they’re actually a much more flexible workforce that can address multiple threats, whether it’s an earthquake—you know, if you take the situation of Hurricane Katrina that happened, our large urban areas really face a lot of serious kind of environmental, social threats to public safety. Crime is just one small part of that. And prisons really can’t help us address those really growing threats.

the alternative is a much more human capital-centered public safety program. Police actually can do a lot to fight crime. We didn’t used to believe that they could do much more than be kind of doormen into the penal system. But police can actually do their best work when they prevent crimes from happening altogether. Then you don’t need to incarcerate people.

The problem is, when you grow your police force, you have to pay for it up front. When you grow your penal system, you pass the laws up front; you don’t have to pay for it for decades. And, of course, now we’re at the point in the cycle where we have to pay for it, and it’s very painful.

a lot of people, since 9/11, have been aware that the war on terror has sort of transformed a lot about American governance. In this book, I really argue that that’s sort of got the history wrong, that it’s really the war on crime that began to deform American democracy. And by the time we got to George Bush and the war on terror, he really had to just extend the same basic logics of government that we had developed in this war on crime, beginning with Richard Nixon forty years ago. So, everything you think happened to America in the last nine years is really a picture that’s taken four decades to get here, that’s going to take a real change, a sea change, in American politics to get us out of this.

We need to actually take a hard look at what America fears. Sort of the conceit of this book is what we fear is very important, because it tends to change who we are. And we began to fear crime in a big way in the 1960s. That wasn’t irrational; it was part of the picture of problems that were facing America. But our obsessive focus on crime has basically deformed not only our ability to address other problems like earthquakes and hurricanes, but also our democratic institutions, because fear of crime tends to erode trust in collective solutions. And as we can see from our healthcare debate, our ability to trust ourselves and our government is a big barrier to solving a lot of these problems.

What people have to understand is that our prisons are basically a day away from a riot every day, and it’s because they are so intensely racially defined. A lot of people don’t realize that when you walk into a prison in California, you might as well be walking back into the Deep South of the 1940s. I mean, literally, I’ve had an attorney describe to me seeing a sign up on the door saying “No black visitors today,” because when they have a lockdown of black prisoners, which they frequently will lock down prisoners based on their race, they will exclude visitors of that race from coming to the prison. So it’s a logic of governance that is completely racialized.

the Supreme Court has said that, you know, you can use race in very limited circumstances where it’s a compelling governmental interest. And prison security arguably is that kind of an interest. But what you have to understand is that we’ve created a prison system that’s really got a vacuum of control on the inside. We have strong walls, but inside there’s no real effective culture or organization. And that has thrown the prisoners back on race, just like we’ve seen in Bosnia and other countries, that when organizational capacity disappears, race tends to show up as sort of a least common denominator.

Jonathan Simon, Associate Dean of Jurisprudence and Social Policy and Professor of Law at the University of California, Berkeley. He is author of the book Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear.

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