Crime creates a debt to the sovereign that must be repaid in punishment

Many would recognize this idea as the simplified core of what is often called the retributive justification for punishment, one centered on the goal of delivering to the offender “deserved” punishment that repays the crime (Frase Reference Frase2005). We also allude to it in the oft-invoked formula that a person released from a prison sentence has “paid their debt to society” and should receive a “second chance” at full citizenship. But this reassuring phrase and the sense of fairness that often takes for itself the name of justice disguises a complex set of political, legal, and even theological moves that have played out over centuries, wherein the political authority of the state gradually replaced the human victim of crime with its own injury to its sovereignty and replaced a complex tactical field of violence and negotiation that attended local justice methods prior to the twelfth century with a set of formal state ceremonies of public torture (Berman Reference Berman1983). Behind the seemingly simple metaphor of punishment being about paying debt, there looms in fact an unbridgeable gulf between the sovereign, who, as prosecutor, judge, and executioner, will set the very terms of the repayment, and the offending citizen, who has in the end only a single body and life with which to pay (Foucault Reference Foucault and Burchell2018, 33). The result is a debt that can never in fact be paid.Footnote ⁴

The myth of repayment and its many modern manifestations are the echoes of the birth of the carceral state itself—criminal accusation and judgment by the sovereign state and public punishment—and part of an even larger revolution in legal and political authority in Western Europe in the late Middle Ages as territorial monarchies began to emerge and struggle to distinguish themselves from church and local authorities (Berman Reference Berman1983). Kings shifted their claim to a divine right based on their charismatic or mystical connection to Christ to a new kind of divine connection as the source of territorial law—from what historian Ernst Kantorowicz (Reference Kantorowicz1957) called “Christ-centered kingship” to “law-centered kingship.” Law would become the theology of a new kind of secular religion of sovereignty, with judges and lawyers as its priestly class. Crimes were no longer a battle between families, clans, or villages but an attack on the ruler’s quasi divine body. The age of torture (at least on the continent) and punishment without limit had begun (Foucault Reference Foucault1996; Pihlajamaki and Korpiola Reference Pihlajamaki, Korpiola, Markus and Hornle2014, 213, citing Langbein Reference Langbein1978).Footnote ⁵

Crucial in this process was the model of canon law, which, infused by the close proximity within the new university law school between canon (church) and civil (Roman) law became “perhaps the most dynamic legal body of the medieval world” (Pihlajamaki and Korpiola Reference Pihlajamaki, Korpiola, Markus and Hornle2014, 202). An important portal of transmission between theologians and law professors in this period was the Decretum of Gratian, one of the first compilations of canon law on the model of the new scholastic system based on Roman law, initiated by Gratian, a professor of canon law at Bologna University in the mid-twelfth century and considered directly influential on Pope Gregory’s authoritative restatement of canon law a century later. Gratian appears to have been influenced by the increasingly punitive turn in late medieval theology in which confession and repentance of sin are not enough and in which “satisfaction” or punishment was also required to atone (Larson Reference Larson2010, 201; emphasis added). By the thirteenth century, in addition to confession and penitence for private sin, the church had embraced a doctrine of systematic public punishment for public sin, adopting as central the principle “ne crimina remaneant impunita” (crimes shall not go unpunished). This new way of thinking about punishment flowed directly into secular criminal law along with many of the central preoccupations of criminal law like intentionality (mens rea) and individual responsibility (Pihlajamaki and Korpiola Reference Pihlajamaki, Korpiola, Markus and Hornle2014, 203).

Thus law, theology, and political theory came together around a central role of punishment in reaffirming the sovereignty of the state by extracting payment for crimes in a manner that was as important to the good order of the polity as atonement for sin was to the moral order of the universe for this time of deep faith. While it would take centuries for the carceral state to grow beyond its early base in courts and scaffolds, the entire panoply of modern justice became possible in this birth moment of the punitive carceral state: prosecutors, criminal investigation, police, juries as representatives of society, criminology as a study of deviant subjects, all were arrayed against an offender who had become the quintessential “social enemy” (Foucault Reference Foucault and Burchell2018, 34).

We get an allegorical picture of this new logic of law, punishment, and sovereignty only a couple of centuries into its development in Europe in Ambrogio Lorenzetti’s frescos titled The Allegory of Good and Bad Government, which were hung in the Palazo Pubblico in the city state of Siena in 1340 (Bartlett Reference Bartlett2001, 94). Located where they would influence the work of one of the most advanced administrations in Europe at that time, the panels clearly signal the centrality of punitive justice in the new civil religion of law and provide reminders that failure to rigorously observe it leads to catastrophe. The Allegory of Good Government shows us precisely the importance that crime be punished for the balance of the social and political order (see Figure 1). The figure of the sovereign (the representation of the commune of Siena) is shown parallel to a goddess-like figure representing justice in its various faces. The goddess is assisted by angelic figures in undertaking the tasks of law, including one carrying a sword to execute criminals and a crown to reward valor, and the other angel seems to be resolving disputes among civil parties. The figure of the ruler is accompanied by a series of figures representing the ideal traits of political leadership. Above him are figures representing faith, hope, and charity. Accompanying him to the right (from the viwers perspective) are figures of peace, fortitude, and prudence. The most important figures by allegorical location (to the right) are magnanimity, temperance, and justice. Justice, who is furthest to the right and, thus, according to the allegorical conventions of the time, the most important, holds on her lap the severed head of a criminal and a crown, representing the direct role of punishment in sustaining sovereignty. In the foreground, beneath the allegorical sovereign, stands a row of citizens and warriors guarding prisoners, including one prisoner wearing the black cap typically reserved for condemned prisoners.Footnote ⁶ In case the civic point was not clear enough, the companion panels show the good effect of this regime of governance on town and country (see Figure 2). Unshown in this cropping of Figure 2, the gates of the thriving city are guarded by the figure of “security” who is depicted as an angel carrying a hanging device.

Figure 1. The Allegory of Good Government

Figure 2. The Effect of Good Government (City)

Lorenzetti’s equation of good rule with exacting punishment marked a substantial hardening of the view of punishment in European society. The reality beyond the allegory was of course, much different. With little state capacity to investigate and prosecute crime, and little will to execute or exile all whom were brought to the courts for serious crimes, the reality of European penal justice would remain heavily leveraged toward ignoring the vast majority of offenses while using the other dimensions of monarchical virtue—in particular, magnanimity and temperance (those companions of justice)—to justify frequent reliance on the prerogative of mercy (Hay et al. Reference Hay, Peter, John, Thompson and Winslow1976). The persistent threat of impunity—the failure to punish crime—runs through our politics of law from the late medieval world to postmodern populist democracies of the twenty-first century. Today, the modern state prefers to present itself in court as the champion or representative of the actual victim and a representative of the aggrieved community (Garland Reference Garland2001; Gottschalk Reference Gottschalk2006; Simon Reference Simon2007), but, in practice, the state’s power over the price to be charged for crime and the terms of repayment are in no way limited by the harms suffered by specific victims. The modern victim has been left as a badge to be worn by the state in its war against those it labels criminals, a symbol of common sympathy in modern social conditions but with no power over a vast punitive system operating in their name.

Predominantly Black communities create a high risk of crime, and punishment can keep Black political and demographic power in check

Sociologist Hubert Blalock (Reference Blalock1960) framed the “racial threat hypothesis” at the outset of the civil rights era, which holds that expansions of punitive social control are often a response by political authorities to increases in Black demographic or political power. Punitive laws and institutions constituted a political signal to white majorities threatened by the power of an oppressed minority. The victories of the Black-led civil rights movement and its institutionalization in federal legislation constituted exactly the kind of empowerment that Blalock predicted would trigger demand for punitive reactions. Had he wanted to, Blalock might have predicted the wave of mass incarceration that was still a decade or so off. The racial threat hypothesis is not a fact about crime or about white voters, it is, in fact, a myth in the sociological sense. The racial threat hypothesis has been replicated many times, but sociologists have differed on how this threat mechanism works—whether it is a racially charged political threat, an economic threat, a crime threat, or all three (Eitle, D’Alessio, and Stolzenberg Reference Eitle, D’Alessio and Stolzenberg2002). While it has taken different forms in accord with the threats and solutions of the age, I would argue that anti-Blackness is a foundational myth of the carceral state in the United States, one that dates to its introduction to colonial North America and has been updated in each new stage of carceral state building since.

As historically institutionalized, the myth that punishment checks the potential threat of Black empowerment has always incorporated all three aspects. As recent historical research has shown, almost every aspect of the organization of chattel slavery was infused with the existential threat to the settlement project whether slowly by labor resistance (partial self-liberation) or more acutely by uprising (Hadden Reference Hadden2003; Johnson Reference Johnson2013; Browne Reference Browne2015; Tomlins Reference Tomlins2020). Many of our most enduring carceral practices—from caging as a form of punishment, patrol-style policing, and heavy doses of white vigilante violence as an adjunct form of state social control—all began in slavery and still shape our carceral state today. Alongside more direct forms of control and suppression, like slave patrols and militias (against Native Americans), the American carceral state has evolved along with the changing forms of the racial threat myth. Indeed, once formal legal racial equality was established in the late twentieth century, making both Native Americans and Black Americans theoretically full citizens under the law, the carceral state has become the most important form of state violence enforcing racial hierarchy as a social fact (Stevenson Reference Stevenson2019; Alexander Reference Alexander2020). All the major forms of political power that constitute the modern state have incorporated a dimension of the racial threat myth.

Sovereignty, as it was expressed after imperial conquest in the Americas (by England, Spain, and Portugal) incorporated enslavement from the earliest stages and forged racial classifications that marked Black and Indigenous people, who were the most commonly enslaved, through their legal systems as having few, if any, rights that White settlers had to respect (Lytle Hernández Reference Lytle Hernández2017). They were marked as a clear and present danger to the White settler community since an uprising of enslaved people, along with any union between enslaved and Indigenous, formed the greatest military threat to White settlers until the middle of nineteenth century (Hadden Reference Hadden2003). Both military forces and nascent law enforcement capacity was from the start shaped by this anti-Black agenda.

The disciplinary remaking of the carceral state in the early nineteenth century that we associate with the birth of the prison, mostly in the northern states, was matched in the South by the carceral shape of the plantation’s physical design and operational logic (Johnson Reference Johnson2013; Browne Reference Browne2015). After slavery, there were explicit efforts to reinforce the discipline of the now technically free Black workforce with the threat of convict leases for those who left their employment to seek fortune in cities (Lichtenstein Reference Lichtenstein1996; Alexander Reference Alexander2020). Prisons and police had spread to every state, and most large cities by the end of Reconstruction and everywhere became focused on Black citizens as soon as enough of them were present to be perceived as a threat (Du Bois [1899] Reference Du Bois2014).

The eugenic expansion of the carceral state was initially aimed at immigrants deemed racially inferior but quickly refocused on Black migrants to the urban North, drawn in part by the successful restriction of immigration from Europe and Asia on eugenic grounds (Muhammad Reference Muhammad2019). By the Great Depression, suppressing Black communities had surpassed labor radicals as the chief preoccupation of American policing (Balto Reference Balto2019). From the end of the Second World War on, the continued growth of Black populations in large northern cities was perceived by both national and local governments as an existential threat to the economic future of the industrial cities addressed by the redeployment of people in the name of modern urban planning (Murakawa Reference Murakawa2014; Hinton Reference Hinton2017). We can see this as an extension of the power to expel people and infrastructures from territories, a power that was historically reserved for Indigenous populations, who were targeted for removal in favor of settler communities and a move to apply them to domestic urban projects (Self Reference Self2003; Schwarzer Reference Schwarzer2021).

The repeated institutionalization of racially charged myths about punishment in the United States has embedded racial threat so deeply in our cultural/cognitive systems that the association between blackness and crime (in both directions) now shows up as one of the most well-established forms of implicit bias (Eberhardt et al. Reference Eberhardt, Purdie and Davies2004). This means that any real opportunity to shrink the carceral state is tied up in a dialectical relationship with anti-Black racism. Concern about racial injustice has proven to be a potent challenge to the legitimacy of the contemporary carceral state, but racial justice movements have proven to be a potent stimulant to the fear of crime.

The idleness of the poor leads to vice and then serious crimes, and punishment can create habits of hard work and thrift

Today, talk of idleness leading through vice to crime may seem a bit antiquarian, and the claim that hard labor in prisons disciplines people whose bad habits led them to lives of crime seems a bit simplistic. Yet the persistent hope that their punishment—especially, punishment by incarceration in a penitentiary-style prison—will lead to positive change in those incarcerated remains one of the most popular sources of public support for prison and, where parole laws require demonstration of such change, one of the most important features of how the imprisoned come to understand their punishment. Likewise, the enduring appeal of forcing imprisoned people to work for nominal compensation remains a nearly universal feature of prison sentences in most states and continues after release through parole work requirements in many (Simon Reference Simon1993; Seim and Harding Reference Seim and Harding2020).Footnote ⁷

The mythic connection between idleness and crime, punishment, and reform has deep roots in European theology and cultural lore, but it became institutionalized in new ways as the commodification of land drove a large portion of the rural laboring poor into forced mobility beginning in England in the sixteenth century. The workhouse as a space of carceral discipline and labor emerged first as part of poor policy and then became institutionalized in the penal field in the form of the penitentiary in North America in the nineteenth century (Foucault Reference Foucault and Sheridan1977; Melossi and Pavarini [1982] Reference Melossi and Pavarini2018; Rothman Reference Rothman2017a). The belief that crime is a product of idleness among the laboring classes and could be reformed through forced labor would become institutionalized in new penal institutions such as transportation to the colonies (perhaps the most perfect way to merge punishment and labor for a settler colonial empire) and the penitentiary—a solution once the nation is taken as the boundary of lawful punishment (McLennan Reference McLennan2008; Anderson Reference Anderson2016). All three (workhouse, transportation, and penitentiary) marked the introduction into the juridical space of punishment of new disciplinary technologies of power that were associated with labor control, enslavement, and colonization. A huge increase in both the scale and capacity of the carceral state, confinement with disciplinary labor would address the scandals of cruelty and impunity increasingly leveled at the classical regime of punishment in the course of the eighteenth century by its Enlightenment critics (Johnson Reference Johnson2013; Browne Reference Browne2015; Anderson Reference Anderson2016).

A crucial link between idleness and crime ran through the figure of the vagrant, a folk devil who became an increasing focus of criminalization in Europe on the cusp of rural land privatization and was also a concern with urban laboring and dangerous classes in the course of the early nineteenth century (Chevalier Reference Chevalier1973). In his lectures while preparing his study of the birth of the prison, Michel Foucault (Reference Foucault and Burchell2018, 173) describes how idleness came to be seen less as a problem of poverty and more as an existential threat to the population as a whole: “What is dangerous is the worker who does not work hard enough. Who is lazy, who gets drunk, that is to say everything by which the worker practices illegalism, not in this case on the body of the employers wealth, but on his own body, on the labor power that the employer considers he owns.” These developments—the criminalization of everyday illegalities—were deeply resented and resisted by the popular classes, experienced by many as a form of “taxation” as well as the loss of popular “judicial and therefore political power,” and Foucault asks: “[S]o why was it tolerated?” (125). Part of the answer lies in the myth that punishment reforms the idleness that will otherwise lead the idle poor to an increasingly bloody path of crime. By the nineteenth century, this linkage was a standard cliche in both popular culture and police science.

Engraver William Hogarth, whose work was widely copied and venerated around the Atlantic, devoted his most famous work to this very subject—a set of thirteen engravings from which paper prints could be cheaply made and distributed. Industry and Idleness (1747) begins with two eponymous “apprentices” at work in what appears to be a textile factory (see Figure 3). The “idle” apprentice is soon let go from employment where a long descent leads ultimately to the gallows for highway robbery. In the penultimate image, the two apprentices come together again with the virtuous “industrious” apprentice, who has risen to be Lord Mayor of London, having to decide whether to place his old friend in the gaol to await a capital trial and likely execution (see Figure 4). Much as Lorenzetti’s frescoes used allegory to depict the marriage between justice and sovereignty as an engine of good government, Hogarth’s much reprinted series (which, unlike most of his work, was produced for cheap mass production) provides an allegorical marriage of discipline and sovereignty referenced by its character’s factory beginning and public gallows ending.

Figure 3. William Hogarth, The Fellow Prentices at Their Looms, 1747.

Figure 4. William Hogarth, The Industrious ‘Prentice Alderman of London, the Idle One Brought before Him and Impeach’d by His Accomplice, 1747

A more “expert” view of the link between crime and idleness was framed by Patrick Colquhoun, a business consultant and crime prevention specialist who was well acquainted with the entire imperial supply chain from India to the ports of England and Scotland. His Treatise on the Police of the Metropolis, which was popular throughout the Atlantic world, addressed idleness among the poor as “a never failing road to criminality” and the chief threat to property (Colquhoun [1797] Reference Colquhoun2012). Left to occupy themselves, according to Colquhoun, the poor would pursue “unnecessary wants” and “improper gratifications,” leading in time to “every kind of violence, hostile to the laws, and to peace and good order” (88).

Beginning in the twentieth century, the grip of forced labor as a tool of discipline loosened somewhat as the influence of modern criminology with its more individualized construction of criminality took hold. Interest in the use of psychology, even surgery, in the quest to root out criminality spread. New prisons were built in many states to serve as correctional institutions, a trend that reached a peak in the 1970s and 1980s and was backed up by federal court interest in fostering more equality in prison conditions. Beginning in the 1980s, a new punitive populism spread, and rehabilitation became associated with “soft on crime” policies (J. Wilson [1973] Reference Wilson2013). But, in its mythic form, the hope that the bad habits of people who commit crimes will be disciplined out of them by the hardships, if not the hard work, of prison remains a perennial source of faith in punishment.

Most crime is the product of a dangerous, deviant minority of offenders, and punishment can remove the irredeemably dangerous from society (while reforming the reformable)

The idea that punishment, especially prison, removes the dangerous minority of highly deviant individuals whose criminality disproportionately harms society is perhaps the most powerful and durable myth in our modern civil religion of punishment. Although the idea of monstrous offenders has its origins earlier in the demonization of the idle in the form of the vagrant or vagabond, the modern notion of a criminal population as a natural category is only about a century old, institutionalized in the great wave of carceral state building in the early twentieth century that historians often group together as part of the progressive reform era (Rothman Reference Rothman2017b). New punitive institutions emerged in this period that extended the power and capacity of courts to individualize punishment, including juvenile courts, probation, and the indeterminate prison sentence (Willrich Reference Willrich2003; Platt Reference Platt2009; Rothman Reference Rothman2017b; Ward Reference Ward2019). On top of the national alcohol prohibition, which was aimed at achieving many of the same goals of preventing degeneracy and the resulting crime, this movement created the first large-scale federal role in law enforcement (McGirr Reference McGirr2015).

Driving this growth was another perceived social crisis associated with labor violence, vice, and crime—namely, the huge wave of immigration from Eastern and Southern Europe (and Asians on the west coast), which grew to a mass scale at the end of the nineteenth century (Okrent Reference Okrent2020). This view was further amplified by the extraordinary success of a new science—eugenics—which, as noted in the expository essay by its inventor Francis Galton (Reference Galton1904), quoted above, was presented as a little less than a new religion fit for modern civilization. Galton, a noteworthy scientist and statistician, argued that most social problems were the product of inherited traits and that controlled human breeding would perfect humanity. In the first few decades of the twentieth century, these theories achieved enormous uptake in the rapidly growing research universities and in the more general middle-class culture. For its enthusiasts, eugenics was a model of everything that could be hoped for from the bold synthesis of science, law, and government power being expounded by many progressives whose influence on both major political parties reached a crescendo in the 1920s and 1930s.

According to eugenicists, most crime and other social problems like mental illness, unemployment, and the like were caused by inherited traits and especially feeblemindedness and could be eliminated by preventing the feebleminded from procreating (through segregation and sterilization) or entering the country (through immigration restriction) (Leonard Reference Leonard2017; Appleman Reference Appleman2018; Muhammad Reference Muhammad2019; Grasso Reference Grasso2024) (see Figure 5). At another scale, most eugenicists believed that these unwanted traits were grouped by nationality as well and that the northern European stock from whom many middle-class Americans traced their lineage were naturally superior to other Europeans and especially to Asians and Africans (Davenport Reference Davenport1910; Goddard Reference Goddard1915; Grant Reference Grant1916). Accordingly, perceived high levels of crime in American cities required both systemic efforts to restrict and segregate those from “inferior” racial backgrounds and using the punishment capacity of the carceral state to remove “degenerate” individuals (Simon Reference Simon2020). In perhaps the most infamous public justification for eugenics in the twentieth century, Justice Oliver Wendell Holmes Jr. brought these dimensions together in a short opinion for seven other justices upholding the power of the State of Virginia to involuntarily sterilize Carries Buck whom they accused of being an “imbecile,” the daughter of an imbecile, and the mother of a third imbecile. In language that managed to invoke national sovereignty as well as the discipline of military forces, Justice Holmes placed eugenics as the ultimate extension of both:

Figure 5. The Feeble-Minded (Juvenile Protective Association of Cincinnati 1915)

Associated with even more extreme eugenic measures (euthanasia and racial genocide) undertaken by the Nazi regime in Germany in the 1940s, eugenics soon came to be seen as both bad science and an abusive form of government at its worst (Cohen Reference Cohen2017; Whitman Reference Whitman2017). Yet its patterns remain in many aspects of American government, including immigration law and the discriminatory treatment of the disabled (Appleman Reference Appleman2018), and nowhere more so than in our enduring faith in punishment as a form of incapacitation and the belief that targeting a dangerous minority among the population with long prison sentences holds the key to public safety. Ideas of what makes people a criminal type have shifted away from biology (although it has never totally lost favor), to sociology, actuarialism, and, today, machine-learning algorithms (Mehozay and Fisher Reference Mehozay and Fisher2019), but the idea that some identifiable minority among the population must be disproportionately responsible for crime remains strong, and belief that law enforcement is good at identifying such criminal types is a solid lock on its legitimacy. What has changed the most since the interwar years is the scale of the population deemed dangerous (Grasso Reference Grasso2024). The selective removal suggested by the Progressives became mass incarceration (Hinton Reference Hinton2017). The myth that punishment is a way of removing the dangerous and degenerate from society remains among the most consequential legacies of the eugenic arc of carceral state building.

Disorder and minor illegality deteriorate neighborhood safety, and aggressive policing and punishment can reinforce social norms and keep neighborhoods safe and economically viable

The most recent punitive myth is associated with the unprecedented growth of both policing and punishment in the United States in the late twentieth century. Central to this project was the claim that minor crime such as drug sales and possession, vandalism, and disorderly conduct is the main force that pushes safe neighborhoods over into being high crime ones and that punishment of minor crime could help neighborhoods ward off the presumptive threat of serious crime, followed by social and economic disintegration. This myth is still part of our contemporary policy discourse where it is best known to both its friends and critics as “broken windows” after the popular magazine article by criminologists James Q. Wilson and George L. Kelling (Reference Wilson and Kelling1982; see also Harcourt Reference Harcourt2005) (see Figure 6). Although most frequently associated with policing, the broken windows idea centers the relationship of crime and disorder in a way that drives punishment as well as policing.

Figure 6. Broken Windows: The Police and Neighborhood Safety (Atlantic Magazine, 1982)

Unlike the earlier punitive expansions that we have surveyed thus far, this mobilization was less associated with the emergence of novel penal institutions than with the enormous expansion of existing institutions (courts, prisons, police, probation, and so on), along with a coordinated effort to “harden” their response toward incarceration for increasing numbers of people (Gottschalk Reference Gottschalk2016; Zimring Reference Zimring2020). Imprisonment rates, which were stable for most of the twentieth century, rose more than four times their historic norm from 1975 to 2005 and became even more disproportionately composed of Black and Brown Americans (National Research Council 2014).

The political economic horizon in which a “war on crime” would dominate much of social policy for the last decades of the twentieth century has been extensively examined (Garland Reference Garland2001; Gilmore Reference Gilmore2007; Simon Reference Simon2007; Wacquant Reference Wacquant2009; Hall et al. Reference Hall, Roberts, Jefferson and Critcher2017; Schoenfeld Reference Schoenfeld2018). In the late 1960s and 1970s, violent crime and drug-related crime were perceived as part of a larger urban crisis marked by disinvestment, loss of middle-class (tax-paying) residents, declining home values, and high concentrations of poverty in historically segregated (generally Black) neighborhoods (Gilmore Reference Gilmore2007). Crime, particularly gun violence and drug crimes (and the alleged nexus between the two), were perceived clearly as an impediment to revitalizing cities with new investment and residents who could only be attracted back by efforts to contain and clear them. In Ruth Wilson Gilmore’s summary of California in that era: “crime” and “violence” seemed to be identical” (112). Together with political dissent and turmoil and one of the greatest waves of labor strikes in the century, this crime and violence nexus became the target of a broader appeal to restore social norms by reemphasizing punishment and discipline (perceived at the time as lacking even in the correctional systems with their talk of rehabilitation).

But the case for a massive expansion of the carceral state was hardly obvious in the 1960s and 1970s. Many critics of criminal justice administration already considered it riddled with racial discrimination and lacking in effective methods of correctional treatment. The liberal Kennedy and early Johnson administrations were focused on using national resources to fight poverty through investing in high poverty communities, not police and prisons (Hinton Reference Hinton2017). It is in explaining this rapid shift from a “war on poverty” to a “war on crime,” and the considerable political and professional resistance to such a punitive expansion, that we can understand the institutionalization of the myth that punishment is necessary not so much to eliminate crime but, rather, to contain it in some neighborhoods and keep it out of others—a kind of urban counter-insurgency (Hinton Reference Hinton2017; Harcourt Reference Harcourt2018).

In recent years, there has been a growing rejection of mass incarceration and the war on drugs by voters and some political leaders. Some cities—most famously at the moment, San Francisco (Shellenberger Reference Shellenberger2021)—have moved away from the broken windows philosophy (only to move back following a backlash), and it remains popular in its hybrid expression of a kind of urban revitalization strategy and has been adopted in other countries (Mejia et al. Reference Mejía, Norza, Tobón, Vanegas-Arias, Buonanno, Vanin and Vargas2022). By feeding the criminal legal system with a permanent penumbra of people under arrest, in jail, in arrears on fines, or on probation, who are on a track that will eventually incarcerate them unless current policies are changed, the reinforcement myth of punishment will make mass incarceration permanent. And by building popular backlash against efforts at decriminalizing low-level offenses—the low hanging fruit of criminal legal reform—the myth with its demonization of the disorderly makes changing those policies unlikely.

Repayment

Given the problems of medical neglect, exacerbated by the aging population of people serving long sentences for either violent crimes or one of the state’s many enhancement laws that turned ordinary felonies into life sentences, the state might have used its considerable administrative powers (parole and clemency primarily) to release this low-risk (because of age), high-vulnerability population. But to do so would risk offending powerful victim organizations by appearing to cancel decades of carceral “debt.” Instead, population caps were met prospectively by using the state’s largely invisible law-making powers to effectively reset the terms of penal payment going forward (sentence lengths stayed the same but shifted the locus of payment from prison to jail and probation), a measure justified in political economic terms as ending the “correctional free lunch” (Zimring and Hawkins Reference Zimring and Hawkins1993; Aviram Reference Aviram2015). The modest decarceration undertaken to improve social distancing during the COVID pandemic came almost entirely from advancing the release of people within one hundred days of their release and not from the release of those most endangered by COVID (Aviram Reference Aviram2022).

Reform

On the eve of mass incarceration, as part of the 1976 Uniform Determinate Sentencing Law, which eliminated the indeterminate sentence system (a relic of the eugenic era) for most California felonies, California expressly denounced its former reputation as the leading US center of modern penal rehabilitation, pronouncing that prison was good for “punishment” only (Gilmore Reference Gilmore2007). Many considered rehabilitation already a myth in California (American Friends Service Committee 1971; Irwin Reference Irwin1980; Cummins Reference Cummins1994). Nearly forty years later, as the California prison system careened toward a showdown with the federal courts in 2006 and increasing demands for fiscal restraint, Governor Arnold Schwarzenegger responded by renaming the California Department of Corrections (established in the 1940s to emphasize rehabilitation) as the California Department of Corrections and Rehabilitation. There was no substantial effort to invest new resources in rehabilitative programming, which was virtually impossible given that the state could not achieve the medical and mental health-care improvement targets being set by the courts because of overcrowding.

The next governor, Jerry Brown, who had presided over the aforementioned jettisoning of the rehabilitative model during his first term in office in the 1970s, now embraced it with enthusiasm, insisting that the state already had one of the world’s most progressive rehabilitation programs (against all evidence). Brown eventually did introduce a voter initiative that returned parole release for many people under determinate sentences based on the completion of supposedly evidence-based rehabilitation. Evidence of any real investment in that programming is scarce. In the most recent example of leaders following the symbolic logic of the myth to almost absurd extensions, Governor Newsom, who came into office in 2019 and is expected to leave in 2027, declared his intention to turn California’s oldest prison, San Quentin, into a Scandinavian-style rehabilitation center (Gans Reference Gans2023; The Guardian 2023). However, San Quentin’s reputation as a site of rehabilitation today is based largely on the self-help provided by inmates, volunteers teaching a wide variety of skills, and peer support. Mostly, rehabilitation remains an unfunded mandate of a state that has invested in little actual programming. More concerningly, it lays the foundation for investing new funds in carceral expansion at San Quentin while leaving much of the mass incarceration-era prison system untransformed and intact.

Removal

While eugenics as a science and as a racial ideology has been largely discredited and repudiated, as a template for action on crime, it remains alive in the carceral state revitalized by new versions (Muhammad Reference Muhammad2019; Grasso Reference Grasso2024). Two ideas remain incredibly sticky: first, that most serious crime is the product of a minority of highly deviant and dangerous offenders and, second, that police or at least prosecutors can identify the right people and address their danger by removing them from the community (Frampton Reference Frampton2021). The era of mass incarceration continues to enhance the claim that its law enforcement establishment, especially its elected local prosecutors, have the expertise to select out the very dangerous using enhancements like “three-strikes and you’re out” or numerous enhancements for guns and gang involvement (Zimring, Hawkins, and Kamin Reference Zimring, Hawkins and Kamin2001; Simon Reference Simon2014). They have also deepened the portrait of California prisons as being filled with very dangerous people by relying heavily on super-max-style solitary confinement incarceration (Reiter Reference Reiter2016).

The legitimacy crisis sparked by overcrowding and the state’s realignment plan has left these beliefs intact. Indeed, the courts’ criticisms of mass incarceration have been based on the claim that California was imprisoning far too many people who did not pose a danger. Parallel challenges to solitary confinement, including a hunger strike and a class action lawsuit from people incarcerated for more than ten years in solitary, resulted in modest reforms, but Governor Newsom vetoed a law that would have ended the practice in 2023, citing the need to deal with dangerous inmates.