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Gerald P. López

Excerpted from: Gerald P. López, How Mainstream Reformers Design Ambitious Reentry Programs Doomed to Fail and Destined to Reinforce Targeted Mass Incarceration and Social Control, 11 Hastings Race and Poverty Law Journal 1- 109 (Winter 2014) (619 Footnotes)


Since the late 1990s, principally fueled by the staggeringly high and ever-growing price of mass incarceration, mainstream institutions and individuals have focused on the need for more ambitious and effective reentry programs. Led by the Council of State Governments, and particularly by the codification of policy statements and recommendations promulgated and spread by the Reentry Policy Council, these mainstream reformers have managed, in my estimation, both to champion their own ambitious approach to reentry and likely doom its chances of success.

Gerald P LopezThis effect might well be characterized as predictable and even intentional. After all, a bipartisan collection of elected and appointed officials and the mainstream institutions and actors they collaborate with both want to announce suitably impressive programmatic proposals and to make certain little upsets the status quo they have created, sustained, and continue to benefit from. They have too much at stake in "what is" (jobs, status, power, and more) to overturn the various systems that together provide them material and ideological sustenance. This sort of interest analysis may be enough to expose and explain the dynamics at work. And an estimable line of thinkers (from investigative journalists to Marxist historians to Lower East Side bodega coffee drinkers) have helped us all to look for these dynamics.

Yet the approach to reentry pursued by the Reentry Policy Council and all with whom they collaborate, particularly as embodied in the 632 page Report of the Re-Entry Policy Council: Charting the Safe and Successful Return of Prisoners to the Community, reveals a perhaps deeper contradiction: The Reentry Policy Council offers a genuinely utopian vision of reentry (not at all my vision but utopian nonetheless) and overwhelmingly reasserts the biases that favor the current approach they aim to overturn. That contradiction may well be representative of the work of mainstream reformers and perhaps of mainstream reforms within liberal democracies. Yet precisely because of the familiarity of this strange internal negation, we perhaps forget to "notice" the built-in tendency. Worse still, *4 we may accept as promising a program that, at most, offers "status quo +" reforms and seduces us into believing we're effectively addressing ("solving") the targeted problem.

But matters are more twisted than that. Even if the Reentry Policy Council's grandest ambitions for reentry were realized, mainstream reformers would still barely reduce the size and the make-up of mass incarceration in the United States. And they would almost not at all challenge the convictions that drive the criminal justice system and other related systems (foster care and immigration, for example) that connect directly to how we profile, label, and deal with criminal offenders. The Reentry Policy Council report propagates a particular preoccupation with reentry that distracts us from directly facing the question of how to reduce mass incarceration and fundamentally alter the criminal justice system.

Ambitious reentry programs always have been the right and the wise thing to do. That is true, whether you regard yourself as hugely in favor of the "get tough on crime" (and its "War on Drugs") or hugely opposed. Among most militant opponents, and emphatically in my own view, reentry has always been the right and wise thing to do but absolutely never has been or will be a substitute for dramatically and immediately reducing mass incarceration and fundamentally altering the assumptions and aspirations of our criminal justice system. Even if you have come to accept that, "this is just what mainstream reformers do," even if you believe "that's the way the world works," acquiescence in the reproduction of the current state of affairs is its own indecent contribution to brutality. We can do away with mass incarceration and transform the criminal justice system. Even if we cannot, we ought to behave as if we can and contribute sweat equity to trying.

* * *

Measured by its own stated goals for reentry, much less as cunning utopian instrument designed to change the reigning criminal justice system, the Report seems demonstrably a failure. People need to lose their jobs and the CSG its funding. Yet assessed as a legitimizer of the status quo, fortifying existing biases and producing at most status quo + changes, perhaps the Report should be regarded as a smashing success. If the Reentry Policy Council and CSG are to be measured only by how well they reinforce and reproduce precisely what through the Report they claim they shall transform, then we should perhaps pause to consider whether their current government, foundation, and private funders will reward them (yes, including the utopians in their midst) with only a small raise or a sizeable one.

That merit raise does not at all reflect anything original about the Report. In the fashion characteristic of mainstream reformers, the Reentry Policy Council and all with whom they collaborate claim to transform what they only further fortify through familiar means. They serve their own (varied yet overlapping) interests. They offer prescriptions that, even on their own terms, often seem questionable and even sometimes laughable. And, far less often noticed, they engage in analysis that by virtue of the categories, stories, and arguments deployed in the reasoning process offer ambitious (even utopian) recommendations built upon the very predispositions that gave rise to and reproduce the status quo ostensibly targeted.

Even the considerable preoccupation with cost-saving and safety-enhancing reentry triggered by the publication and marketing of the Report, and by the grants awarded to all those who vow allegiance to its dictates, is *108 part of a recognizable pattern. Mainstream reformers across realms (immigration, legal education) routinely get others to focus on some dimension of what they perhaps want or at least are willing to change. Meanwhile, the transformative proposals categorically exclude or bury or at least obscure from scrutiny precisely the predispositions that reinforce the very system in crisis. To produce status quo + changes turns out to represent perhaps the way mainstream reformers catapult "what is" (almost entirely unaltered) into the future.

But familiarity may well be a virtue not a vice. Were CSG too original, too notable in its formulation of the problem or the solution, more constituencies might well have paid far closer attention than appears to have been true. That attention might well have stirred controversy, certainly among militant opponents, perhaps from the fiscally conservative right, perhaps even among those who ally themselves with state elected and appointed officials. Instead the Report's recognizable design appeared to have dampened and perhaps even preempted growing concerns over the cost of mass incarceration.

Its considerable length, its apparent scientific sophistication, and its seeming attention to detail proved confidence-inspiring. Even perhaps the Report's strong totalizing utopian vision (experts providing a plan that, if enforced, guarantees success) generated more reassurance than alarm. That will likely continue to be true so long as few actually study the Reentry Policy Council's message, which history suggests seems likely. Perhaps what it means to believe in the United States is to accept that when bi-partisan mainstream reformers like CSG finally get down to business they really mean what they say and do what they mean.

I have no illusions about just how significant a contribution results from any sustained effort to unmask this or any other status-quo reinforcing document--be it a constitution, a piece of legislation, a judicial opinion, or a prominent policy proposal. The work should be done and plays a role. Just as other work must be done and plays a role in challenging the reigning criminal justice system. We should industriously lobby for still more "ban the box" laws; we should painstakingly research and produce routinely updatedlocal Reentry Guides; we should design ever more accurate and *109 revealing survey instruments that aim, at some point, to permit all those most directly affected by targeted mass incarceration and social control to evaluate services provided; we should create and recreate ever better workshops for prisons and jails and neighborhoods, all to better equip diverse people to understand particular challenges and ways of effectively dealing with them. And so much more.

Meanwhile, we should not trust, in any way, those who claim we need only modest changes in an otherwise just criminal justice system. Make absolutely no mistake. The Report is written by presumptively law-abiding people for other presumptively law-abiding people to provide a comprehensive system for how to treat convicted law-breakers and those living in neighborhoods and communities presumptively (categorically) more inclined to commit crimes. The biases that drive the Report, all of the Reentry Policy Council's work, all of CSG's work, utterly reinforce precisely the brutally punitive and phenomenally expensive system of targeted mass incarceration and social control.

We all carry the shame of the continuation of the current status quo--yes, including even the most militant among us. We must do all within our powers to nullify its effect, informally, and formally, each and every day and over time, through every big collective action and through every individual exercise of informal discretion. Nothing less stands a chance against so deeply rationalized and well immunized a regime. We must abolish targeted mass incarceration and social control and in its place begin to configure a criminal justice system deserving of a radically democratic and egalitarian world. And we shall do so only if we are able and willing to change ourselves.|



Professor of Law, UCLA School of Law.