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Justice for Sale: Crime and Punishment in the Golden State
I. Introduction
The United States currently has the highest incarceration rate of any democratic nation in the world.
In the past thirty years, America’s prison population has tripled; it presently has 750 inmates for
every 100,000 citizens, a figure that is almost five times higher than the global average1. This surge in
incarceration numbers is primarily the consequence of federal policy shifts during the 1970s and
1980s that mandated increasingly punitive treatment for drug offences following the demise of the
New Deal rehabilitative agenda2. The Nixon administrations’ “get tough on crime” ethos not only
increased funds to law enforcement agencies, but also served to propel the issue of crime into the
public sphere. Later policies pertaining to the “war on drugs” introduced a number of legislative
reforms to the judicial process resulting in significantly longer sentencing terms. Existing literature
tends to emphasize the role of certain socio-economic and political interest groups in maintaining a
system judged to be needlessly punitive but highly profitable, which, it is argued, has had little actual
impact in reducing crime rates3. David Garland thus concludes ‘it is clear enough that criminal
conduct does not determine the kind of penal action that a society adopts…It is not “crime” or even
criminological knowledge about crime that affects policy decisions, but rather the way in which “the
crime problem” is officially perceived, and the political positions to which these perceptions give
rise’4.
1
Falk, 2010, pp152-155.
Parenti, 1999; Mauer, 2001.
3
Falk, 2010; Garland 2001; Hallinan, 2001.
4
Garland, 1990, p20.
2
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II. Research Setting
My research would explore the idea that punishment essentially acts as a separate function to crime
control by focusing on the interplay between changes in crime legislation and its relationship to the
shifting demographic landscape of California in the last decades of the twentieth-century. This era
witnessed a period of intense grassroots activism spearheaded by the so-called ‘suburban warriors’5,
the emergence of Sunbelt Republicanism, and nativist backlash against Latinos in the region; public
discourse surrounding crime control increasingly coming to crystallise around the issue of
immigration. While there is a large body of literature that examines the origins and impacts of the
correction trend within the United States6, few have sought to do so in a localised context7.
Moreover, no studies have as yet framed this issue around the emergence of new conservative
strategies in the region; the mobilisation of citizen activists; immigrant backlash; and the role of
certain economic and political interest groups that stood to gain from punishment as a for-profit
industry. The chronology of these events is significant in several instances. Public opinion polls
demonstrate that popular consensus around punitive sentences became forged to concerns over
immigration8 during the election campaign of California State Governor Pete Wilson. The evolution
of highly emotive debates surrounding these issues was marked by a series of public votes that
brought a “crime of the week”9 mentality to the ballot box, the dynamics of which were played out
through a series of referendums culminating in Proposition 187 that expressly linked the presence of
illegal immigrants to crime control and state expenditure10.
Underlying these events was California’s worsening budget deficit following cuts to government
defence spending that disproportionately affected a state famous for pioneering the military-
5
McGirr, 2001.
Examples include Garland, 1990; Garland 2001; Beckett, 1997; Blomberg and Lucken, 2010.
7
One exception is Domanick’s study on the evolution of the ‘Three Strike’ law in California. Domanick, 2004.
8
Hayes-Bautista, 2004, p125; Starr, 2004, p194.
9
th
The Economist: “California’s Overcrowded Prisons”, August 13 2009.
10
Subtitled ‘Save Our State’ Proposition 187 stated ‘The People of California…have suffered and are suffering
economic hardship caused by the presence of illegal aliens in the state...and damage caused by the criminal
conduct of illegal aliens in this state’. Text cited in Wroe, 2008.
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industrial-complex11. For many former rural steel, coal and manufacturing regions the solution to
this problem lay in prison construction, increasingly viewed not as ‘houses of detention but as
engines of economic salvation’ 12 . Towns competed to win prison contracts by offering tax
abatements, staff training programmes and subsidised or even free land. The emergence of this
highly lucrative prison-industrial-complex comprising ‘a set of bureaucratic, political and economic
interests that encourage spending on imprisonment regardless of actual need… [has] given prison
construction in the United States an almost unstoppable momentum’13. Nowhere is this more
apparent than in the sphere of immigration control policies that have increasingly followed a
criminal justice paradigm. Since 1985, detainees by the Immigration and Naturalisation Service have
been the fastest growing segment of the U.S. correctional population. The percentage of noncitizens held in federal jails has more than doubled, while the average incarceration time for those
convicted for immigration offences has risen from 3.6 months in 1985 to 20.6 months in 200014. The
commodification of inmates is often explicit; some officials refer to detainees as an inexhaustible
“product”15, while private prisons have sought to extend into a sector viewed as a seemingly
‘recession-proof industry16’.
III. Objectives
Large-scale Hispanic immigration to the Sunbelt southwest is a fairly recent phenomenon; therefore
historians are only now starting to explore its full implications17, while criminologists studying shifts
in penal reform tend to overlook broader historical trends at a localised level. Coming from a
comparative American background, the dearth of literature on these inter-related themes struck me
as somewhat surprising; particularly given that the evolution of successive referendums,
11
This term was coined by Dwight D. Eisenhower in his farewell address to the nation and refers to Sunbelt
boosters’ efforts to win federal defence grants, transforming ‘warfare into welfare’. Lotchin, 1991;
12
Hallinan, 2001, p85.
13
Schlosser, 1998.
14
Selman and Leighton, 2010, p123.
15
Welch, 2002, p168.
16
Dow, 2004, p156.
17
García, 2003; Morgan and Davies (eds.), 2007; Portes and Rumbaud, 2006; Suárez-Orozco, and Páez (eds.),
2002.
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pamphleteering by grassroots bodies, and widespread media coverage suggests that in the minds of
the Californian electorate these linkages were apparent from the outset. This period therefore calls
for an interdisciplinary study exploring the evolution of crime control as a direct response to sociodemographic change.
California presents the ideal location through which to explore the full spectrum of intended and
unintended consequences stemming from changes in crime legislation. Since 1976, the state has
passed nearly a thousand laws mandating tougher sentencing18, ensuring that proportionately it
now has the largest prison system in the Western World19. The correctional trend of the past few
decades has since reached crisis point; overcrowding and a shift away from rehabilitation
programmes have meant that prisons now serve as a revolving door, with recidivism rates currently
standing at over 70%20. Academics have therefore sought to understand the wisdom behind a
system whose existence is now taken for granted despite its visible failures21. Leading questions
pertaining to the criminological discipline can therefore be applied to the specific context of
California. What is the relationship between rehabilitation and retribution? Punishment for whom
when the costs of mass imprisonment far outweigh any visible benefits? Is criminal punishment
governed solely by political and market imperatives? And if so, then does this delegitimise the very
nature of the punitive system itself?
A study that seeks to establish detailed empirical evidence relating to crime rates among Hispanics in
an era of intensified debate surrounding the subject of immigration provides one means through
which to explore these questions. Did crime rates in fact escalate in any meaningful way as a direct
consequence of increased Latino immigration? Does Pete Wilson’s claim for an annual compensation
of $2.3 billion22 from the federal government to cover the expense of immigrant incarceration bare
18
The Economist: “California’s Overcrowded Prisons”.
Schlosser, 1998.
20
The Economist: “California’s Overcrowded Prisons”.
21
Lynch, 2007.
22
Starr, 2004, p184.
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any relation to the true costs incurred by the state? To what degree, if any, is an increase in
incarceration rates reflective of criminal activity amongst Hispanics; or is this rather indicative of the
criminalisation of immigration status under harsher sentencing laws? The link between Latino
communities and rising crime rates remains tenuous at best. Yet the fact that Hispanic Americans
largely conform to structurally disadvantaged positions has led to widespread assumptions that this
would be matched by correspondingly high drug usage and crime rates. While studies relating to
these issues remain in their infancy, recent research resoundingly contradicts this picture 23 .
California today stands at a crossroad. An emphasis on crime control serves only to exacerbate the
state’s worsening fiscal crisis and marginalise groups along race and ethnic lines. Yet a white
minority of the population uses its voting majority to introduce ‘policies that shape the future to be
borne by the incoming [Hispanic] majority. These policies appear more devoted to the past, or
designed to avoid burdens in the present, then they are aimed at the best interests of the state and
its residents in the future’ 24 . Research into this period will therefore contribute to a fuller
interpretation of California’s turbulent transition into a minority-majority state.
IV. Methodology
A wide range of secondary literature exists on penal reform, the emergence of new conservatism in
the Sunbelt Southwest, and the impact of recent Hispanic immigration to the region. However,
rarely, if ever, are these themes studied in conjunction. My intention is to use existing literature on
criminology as a framework around which to construct a localised study of California between the
1970s and 1990s.
Given that this is a relatively contemporary period, some primary source material is available on the
internet. Useful websites include the California Department of Corrections and Rehabilitation, which
lists statistical information including a breakdown of prison populations in terms of race and
23
24
Hayes-Bautista, 2004, Martinez, 2002, Mann, 1993.
Myers, “California and the Third Great Demographic Transition”, p347, in Morgan and Davies (eds.), 2007.
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ethnicity, details on the nature of crimes committed, and recidivism rates. Its archive pages date
back to the 1950s and could provide a useful starting point in examining Hispanic crime convictions.
The California Prison Guard Union newspaper “The Peacekeeper” is also available online and offers
an interesting insight into this organisation. Content analysis of local media archives presents one
means through which to gage public opinion in response to criminal justice policies.
There are a number of Human Right Groups that concentrate on the incarceration system such as
“Prison Abolitionists” and “California Prison Focus”, details of which are listed in the bibliography.
Both have established links with the incarcerated community.
Selman and Leighton provide information on obtaining federal and state prison contracts in the
central-South, which are accessible under the Freedom of Information Act25. This model could
conceivably be replicated in California. While contracts provide compelling evidence of the ‘forprofit’ side of the industry, requests would need to be made in my first year of study given that this
is a time-consuming process.
In the second year of the PhD programme, I hope to conduct field research in order to access public
records from this period. The Paul Gann Archive in California State Library, Sacramento, holds a
number of political documents and citizen letters relating to this period. I would also look at
employment records in towns such as Chino, San Bernardino County and Corcoran, Kings Country, in
order to assess the importance of the prison industry to the local economy, and to explore whether
there is a direct correlation between a fall in federal defence spending and the emergence of the
prison-industrial-complex.
25
Selman and Leighton, 2010.
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Bibliography:
Beckett, Katherine, Making Crime Pay: Law and Order in Contemporary American Politics (Oxford:
Oxford University Press, 1997).
Blomberg, Thomas G., and Lucken, Karol, American Penology: A History of Control (New Jersey:
Transaction Publishers, 2010).
California Prison Focus
http://www.prisons.org/
California Department of Corrections and Rehabilitation
http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Annual/CalPrisA
rchive.html
Domanick, Joe, Cruel Justice: Three Strikes and the Politics of Crime in America’s Golden State
(Berkley: University of California Press, 2004).
Dow, Mark, American Gulag: Inside U.S. Immigration Prisons (Berkley: University of California Press,
2004).
Falk, Gerald, The American Criminal Justice System: How It Works, How It Doesn’t Work, and How to
Fix It (California and Oxford: Praeger, 2010).
García, John A., Latino Politics in America: Community, Culture, and Interests, (Oxford: Rowman &
Littlefield Publishers, Inc., 2003).
Garland, David (ed.), Mass Imprisonment: Social Causes and Consequences (London: Sage, 2001).
Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford and New
York: Oxford University Press, 2002).
Garland, David, Punishment and Modern Society: A Study in Social Theory (Chicago: University of
Chicago Press, 1990).
Goldberg, Eve and Evans, Linda, “The Prison Industrial Complex and the Global Market”, Global
Exchange.
http://www.globalexchange.org/countries/americas/unitedstates/pic.html
Hallinan, Joseph T., Going up the River: Travels in a Prison Nation (New York: Random House, 2001).
Hayes-Bautista, David E., La Nueva California: Latinos in the Golden State, (Berkley: University of
California Press, 2004).
Lotchin, Roger, Fortress California 1919-1961: From Warfare to Welfare (New York: Oxford
University Press, 1991).
Lynch, Michael J., Big Prisons Big Dreams: Crime and the Failure of America’s Penal System (New
Brunswick: Rutgers University Press, 2007).
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Martinez, Ramiro, Jr., Latino Homicide: Immigration, Violence and Community (New York and London,
Routledge, 2002).
Mauer, Marc, “The Causes and Consequences of Prison Growth in the United States”, Punishment
and Society, vol.3 (January 2001).
McGirr, Lisa, Suburban Warriors: The Origins of the New American Right, (New Jersey: Princeton
University Press, 2001)
Morgan, Iwan, and Davies, Phillip, (eds.), America’s Americans: Population Issues in U.S. check
Society and Politics, (London: Institute for the Study of the Americas, 2007).
Parenti, Christian, Lockdown America: Police and Prisons in the Age of Crisis London: Verso, 1999).
Pattillo, Mary, Weiman, David, Western, Bruce (eds.), Imprisoning America: The Social Effects of
Mass Incarceration (New York, Russell Sage Foundation, 2004).
Portes, Alejandro and Rumbaut, Rubén, A., Immigrant America: A Portrait (Berkley: Universality of
California Press, 2006, 3rd Edition).
Prison Abolitionists
http://www.prisonabolitionist.org/
Schlosser, Eric, “The Prison-Industrial Complex” in The Atlantic (December 1998).
http://www.theatlantic.com/magazine/archive/1998/12/the-prison-industrial-complex/4669/
Selman, Donna, and Leighton, Paul, Punishment for Sale: Private Prisons, Big Business, and the
Incarceration Binge (New York: Rowman and Littlefield Publishers Inc., 2010).
Starr, Kevin, Coast of Dreams: California on the Edge 1990-2000 (New York: Alfred A. Knopf, 2004).
Suárez-Orozco, Marcelo M., and Páez, Mariela M., (eds.) Latinos Remaking America (Berkley:
University of California Press, 2002).
The Economist:
“California’s Prisons: Jailhouse Blues” (February 11th 2010).
“California’s Overcrowded Prisons” (August 13th 2009).
“California’s Prisons: Packing Them In” (August 10th 2006).
“Prison Punishment: Hotel California” (February 24th 2005).
http://www.economist.com/
The Peacekeeper
http://www.ccpoa.org/news/category/peacekeeper/
Welch, Michael, Detained: Immigration Laws and the Expanding I.N.S. Jail Complex (Philadelphia:
Temple University Press, 2002).
Wroe, Andrew, The Republican Party and Immigration Politics: From Proposition 187 to George W.
Bush, (London: Palgrave Macmillan, 2008).