Since the 1970s, the United States has relied heavily on its criminal legal system to address societal problems. Behaviors born from poverty, joblessness, mental illness, substance use disorders, and racial unrest have all been criminalized and punished. Local governments have also enlisted the criminal legal system to generate revenue, balancing municipal and county budgets via the “cash register justice” of fines and fees.
The result has been the system’s massive expansion. Budgets and personnel for law enforcement, the courts, and corrections mushroomed to accommodate a 700 percent increase in the incarceration rate and a fourfold increase in the number of people on probation and parole. In 1970 our nation’s jails and prisons held fewer than 200,000 people. They now hold over 1.9 million—nearly a fifth of the world’s total prisoners, making the United States the country with the largest share of its population behind bars. In 1980 probation and parole supervised just shy of 1.5 million people. Today almost 4 million are caught up in one or the other. All told, the criminal legal system now supervises or incarcerates over 4 million more people than it did just forty years ago. Indeed, the carceral net has widened so much that more than half of adults in the United States now have an immediate family member who has been to jail or prison.
There has been some recent cause for hope. According to The Sentencing Project, the U.S. prison population has dropped 11 percent from its peak in 2009. In addition, many states have reported declines at least as great since their respective peaks. While, on average, reductions have been on the order of approximately 9 percent, ten states have decreased the size of their prison populations by between 25 and 39 percent.
Despite these improvements, a dark reality remains. Twenty-two states have seen only minor drops of 5 percent or less, no real change at all, or increases in rates of incarceration since 2013 on the order of up to 10 percent. After a seven-year decline, President Joe Biden’s two years in office have seen an increase in the federal prison population. Further, even among states with large prison population declines, decreases over the past two decades are dwarfed by the increases observed between 1977 and 2009, the year the country’s incarceration rate peaked. For instance, relative to New York’s 192 percent prison population increase from the late 1970s to the late aughts, its 36 percent decline since 1999 seems far less remarkable. Similarly, between 1977 and 2009, Alaska’s prison population increased by 506 percent, which renders its 38 percent prison population reduction since 2006 far less impressive. At the current pace of change, it is estimated that the United States would take another seventy-five years to return to its pre-1970 incarceration rates.
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But a return to 1970s incarceration rates would still not end mass incarceration. Stated plainly, mass incarceration is a system and a logic of racial and class domination. Decarceration alone cannot end it. Despite this, some jurisdictions—such as California and New Jersey, as well as the cities of New York and San Francisco—have muddied these distinctions, confusing a reduction in incarceration with an end to mass incarceration writ large. To be sure, decarceration is happening, or has happened, in each, the result of more people being released from jail and prison, fewer people entering jails and prisons, and shorter periods of incarceration. But one would be misguided to declare mass incarceration’s end in any U.S. jurisdiction.
Many scholars, advocates, practitioners, and community organizers in the social and racial justice space—notably Elizabeth Hinton, Andrea James, Mariame Kaba, Danielle Sered, and Loïc Wacquant—have taken up the question of what would actually constitute the end of mass incarceration. I take inspiration from their bodies of work to propose five criteria that must be met before jurisdictions can legitimately claim an end to mass incarceration within their borders:
- Low rates of arrests, prosecution, and correctional control (circa 1970) across neighborhoods and communities
- The elimination of racial disparities in criminal legal system outcomes
- A substantial reduction in the size of the criminal legal system’s footprint and concomitant expansion of social welfare systems, including larger investments in health care, housing, education, employment, parks, etc.
- Payment of reparations to communities whose members have been harmed by mass incarceration
- A devolution of power to communities to craft their own responses when their members inflict harm
In what follows, I consider the case of San Francisco, which has recently received some positive press for supposedly ending mass incarceration within its borders. I explore just how premature such a declaration is and consider how the city, and our nation, might take meaningful steps toward achieving this goal.
In response to significant declines in San Francisco’s incarcerated population, James Austin of the JFA Institute (a corrections-industry thinktank) declared that the city had ended mass incarceration within its borders. “If the rest of the country could match San Francisco’s rates,” Austin stated, “the number of individuals under correctional supervision would plummet from 7 million to 2 million. The nation’s 2.3 million prison and jail populations would decline to below 700,000 and ‘mass incarceration’ would be eliminated.”
It is true that, relative to California’s 2020 incarceration rate (310 per 100,000), rates in the city and county of San Francisco were significantly lower (117–118 per 100,000). Further, in 2021 their rates were lower than the average for all counties, and for urban counties, across the United States (196 and 156 per 100,000, respectively).
However, the city’s overall rate (118 per 100,000) obscures high rates of incarceration within its borders. When broken out by neighborhood, many have incarceration rates that approach or exceed 300 per 100,000—roughly three times the city’s average and equal to or higher than the state’s rate. These include Hayes Valley (295 per 100,000); the Financial District (305); Mt. Davidson Manor (308); Fairmount (338); Bayview, Hunters Point, and Silver Terrace (each 335); Sunnydale (345); and Midtown Terrace (358). To claim, then, that San Francisco has ended mass incarceration is implicitly to attempt an erasure of these neighborhoods.
This point about which neighborhoods count also helps us to reflect on the fact that mass incarceration is not solely a matter of incarceration rates. It is also about who we choose to criminalize and incarcerate. The disproportionate criminalization and incarceration of poor people and communities of color—and especially communities that are both Black and low-income—is a unique feature of the system. Ending mass incarceration, then, also means eliminating this racist targeting and the resulting racial disparities.
By this measure, too, San Francisco falls woefully short. Far from eliminating racial disparities, San Francisco continues to be one of the state’s worst offenders. Although only 5 percent of San Francisco’s population is Black, Black people make up 38 percent of those arrested in the city and 56 percent of the city’s jail population. Put another way, in San Francisco, Black people are six times more likely than white people to be arrested and seventeen times more likely to be incarcerated. Further, the San Francisco Police Department’s 2020 arrest rate for Black people was 3.6 times the average arrest rate for Black people statewide. Black San Franciscans are also rearrested, reconvicted, and re-incarcerated at disproportionately higher rates than are white San Franciscans.
As the U.S. legal system became more retributive in nature, it drove a need to process, warehouse, and otherwise surveil millions of people each day. This continues to be made possible by unprecedented investments in the expansion of police departments; prosecutors’ offices; jails, prisons, and detention facilities; community supervision and surveillance; and, to a lesser extent, the courts.
This expansion coincided with an era of welfare retrenchment, starving a number of key programs—including Aid to Families with Dependent Children and public housing—that had previously served the needs of poor people. Predictably, jurisdictions increasingly relied on the burgeoning criminal legal system to contain and control problems born of poverty and joblessness, homelessness, mental illness, substance use, and racial and class discontent, contributing to mass criminalization and mass incarceration.
To reverse these trends, the project of ending mass incarceration will require that jurisdictions divert spending from the criminal legal system toward making substantial investments in health and human services and community’s material needs.
To some degree, San Francisco’s government acknowledges the need to address the harms caused by this system. However, the ways it has sought to do so have generally involved increasing, rather than reducing, the capacity of various departments in the criminal legal system. As a result, the system has only grown in budget and personnel.
For instance, many fewer people are being held in San Francisco County jails—2,218 people per day on average in 1992 versus 815 people today. And because of jail closures, the city’s capacity to hold people who have been arrested has also declined significantly. For those committed to ending mass incarceration, this is good news—but it is tempered by troubling trends. Since the Humphrey decision in 2018, for instance, court-ordered pretrial electronic monitoring (EM) in San Francisco County has tripled. Before 2018 the county released fewer than a hundred people on pretrial EM per year; by 2020 it was releasing over a thousand people to pretrial EM each year. San Francisco adopted this approach despite its racially disparate impact, despite research supporting its efficacy, despite its net-widening effects, and despite a growing body of evidence that pretrial EM inflicts harms, both short- and long-term, on individuals, families, and communities. In practice, then, San Francisco has not divested from its massive criminal legal system apparatus. It has simply swapped one set of harmful practices for another.
The result is that, despite dramatic declines in arrests, case volumes, and people detained, total costs of San Francisco’s criminal legal system have continued to increase. Between fiscal years 2015–16 and 2022–23, the only departments to experience a stalled or reduced budget were the Superior Court and Police Accountability. Meanwhile, the following departments saw their budgets soar: Adult Probation (+73 percent), the District Attorney’s Office (+62 percent), Juvenile Probation (+25 percent), the Public Defender (+57 percent), Police (+31 percent, which includes a 5 percent decline in the two years after George Floyd’s murder), and the Sheriff’s Office (+45 percent). Between 2021 and 2022 alone, budgets for “public protection” increased by 10 percent, from $1.75 billion to over $1.9 billion, much of which was committed to recruiting, hiring, and training new officers.
It is instructive to compare this to how the city has invested in infrastructures of care. Take a seemingly intractable problem like homelessness, for instance. San Francisco has been notorious for criminalizing its population of (disproportionately Black) unhoused people. And despite recent efforts to move away from punitive approaches to address this ongoing crisis, jail populations in San Francisco, as elsewhere, disproportionately suffer from untreated chronic health conditions, mental illnesses, substance use disorder problems, and housing instability. At any given time, roughly 22 percent of San Francisco County jail inhabitants have a serious mental illness, 80 percent report substance use, and roughly 40 percent are homeless or unstably housed.
There is no question that San Francisco has substantially increased its investments in supportive housing and in homelessness services, tripling support between 2016–17 and 2022–23, from $224 to $672 million. And it appears that those efforts have made a difference: a census of San Francisco’s homeless population in 2022 revealed 3.6 percent fewer unhoused people than in 2019 (a reduction from 8,035 to 7,754). But with over 7,500 still in shelters or (mostly) unsheltered, much more needs to be done. The civic appetite for spending on these services appears to have run out, though. While the budget for the San Francisco Police Department increased by 8.7 percent from 2021–22 and 2022–23, the budget for Homelessness Services increased just .6 percent. Nor has San Francisco made even minor progress on affordable housing development. San Francisco has permitted roughly 3,500 units to be built each year, but the city needs to build more than 80,000 new housing units by 2030 to meet goals set by the state; that’s 10,000 units per year, or three times the number that San Francisco is currently permitting.
Taken together, this paints a picture of a city that has neither ended mass incarceration nor adequately invested in addressing its extraordinary social and economic inequities.
A true end to mass incarceration must include an acknowledgement of, and an apology for, the generations of harm that the state has inflicted through its criminal legal system on poor people and communities of color. In addition, there must be some form of reparations. Targeted communities need to be made whole. Until this is done, San Francisco cannot say that it has ended its era of mass incarceration, nor can anyone else.
There is some cause for hope. In 2020 California Governor Gavin Newsom signed legislation creating the Task Force to Study and Develop Reparations. Its mandate is to offer a general survey of the ways that federal, state, and local governments have systemically harmed Black people and Black communities in California. The task force has a July 2023 deadline to produce a final report, including recommended remedies, but a recent interim report highlights findings and lays out a course for future deliberations.
Among the various systems of harm the report describes, it specifies patterns of racial terror by law enforcement as well as discriminatory policies, practices, and procedures that undergird patterns of harm in the state’s criminal legal system. The task force’s provisional recommendations include the following:
- Eliminating inequitable and harmful practices in policing (e.g., racial profiling, inequities in police stops, over-policing Black communities, deployment of policing technologies that violate human and civil rights), prosecution and the courts (e.g., wrongful convictions, sentencing inequities, and over-incarceration), corrections (e.g., unjust security level determinations), and community supervision (e.g., racial inequities in parole hearing processes and related outcomes)
- Reducing the size of the criminal legal system’s footprint and filling the gap with greater investments in institutions that contribute to safe, healthy, thriving communities
- Compensating the descendants of enslaved African Americans or of a “free Black person living in the United States prior to the end of the 19th century” for discriminatory treatment in housing, health care, business, finance, and mass incarceration
This set of interim recommendations from the state commission already goes further than San Francisco’s own reparations advisory committee. That body’s interim report disappointingly failed to prioritize dismantling systems of mass criminalization and incarceration of Black residents; it also said nothing about compensating them for the harms inflicted by the city and county’s criminal legal system. The state task force’s interim report is thus far bolder, and if its recommendation for reparations were to be followed, it would result in a considerable cash transfer. Compensatory damages for codified housing discrimination alone, as practiced between 1933 and 1977, would run to roughly $223,000 per person, or $569 billion total. If adopted, the Reparations Task Force’s recommendations would fundamentally alter the experience of being Black in California—and perhaps in other parts of the country, if the reparations campaign spreads.
But most task force recommendations go nowhere; they gather dust on shelves, especially so when the task force has little authority to enact recommendations. The situation is made worse by the fact that backlash against the possibility of reparations to African Americans is already gaining steam. This portends poorly not only for ending mass incarceration in California, but in San Francisco as well.
Ending mass incarceration would necessitate upending the power dynamics that allowed an unaccountable system of mass criminalization and incarceration, in service of racial and class domination, to emerge in the first place.
We must devolve the power to determine what behaviors represent harm—and how that harm should be addressed—to communities themselves. This is not a new idea. For decades, communities of color have rejected the centrality of police by experimenting with community-based approaches to safety. Evidence suggests that their efforts are often more effective than those of local law enforcement at improving safety and quality of life. While San Francisco may have considered the possibility of self-governance in the distant past, to my knowledge, no such proposal is currently on the table. Not only does this mean that the end to mass incarceration is unlikely, but it also means that—even if mass human caging were to be eliminated—it would likely be replaced by another system of racial and class domination.
San Francisco is only one of several jurisdictions in which mass incarceration has been said to have ended. Mass incarceration’s demise has also been heralded in California as a whole, New Jersey, and New York City. Other states, like Massachusetts, almost certainly think they should be on this list as well. In all these cases, however, the declaration is premature, at best.
In each jurisdiction, there continues to be very high rates of criminalization and incarceration in a subset of neighborhoods or communities. Targeted communities or neighborhoods are disproportionately Black and/or poor. While there have been efforts to reduce certain aspects of their criminal legal systems, for the most part, their systems not only remain intact, but are more heavily invested in than ever. Meanwhile equivalent investments in health and community remain elusive. In all, there have been no efforts, thus far, to repair the damage done by systems that harm intergenerationally and that continue to exact punishment in disproportionate, inequitable, and inhumane ways. In sum, the power structures that enabled the birth and expansion of this institution of racial and class domination remains firmly intact.
So, no, San Francisco has not ended mass incarceration, nor have any of the others. To suggest otherwise merely compounds the harm that mass incarceration has inflicted over the years.
Image: Levi Meir Clancy/Unsplash
