This perspective reveals one of jail’s great and enduring anomalies—that many if not most of the people confined there remain legally innocent, having been found guilty of no crime—to be absolutely central to its role in maintaining and managing the underclass. Since the great majority of those in jail have been arrested because they are perceived as a threat, rather than because they have committed particularly blameworthy crimes, criminal convictions and carceral punishments might frequently fail to follow arrest. This would be true if, as the law imagines, most arrested people were released pending their trial, able to assist their attorney and enjoy the relative comfort of home while seeking to put the state to the full burden of proof (if not seeking delays that often undermine the state’s case). But through the foreseeable fact that members of “the rabble” are unable to afford bail or to qualify for alternative forms of relief (which tend to require evidence of a stable lifestyle and respectability), a greater portion of them face prolonged incarceration while awaiting trial, and thus maximum pressure to plead guilty.
Irwin’s analysis also draws us into what sociologists might think of as the “secondary deviance” effect of jails. The events that lead to arrest are often part of an experience of conflict with or alienation from the community. While incarcerated, arrested individuals are likely to experience further warnings of their social ties to the community. If they had a job, they are likely to lose it. If they had housing, or a relationship, they are also in danger of losing that. Meanwhile, jail is a conducive setting for the recruitment of individuals into criminal lifestyles, and assuring that the selective targeting of minority urban youth will produce more of the same, as an expanding range of people targeted and punished, reinforces perceptions that the community is dangerous and disorganized and thus must be aggressively policed.
For Irwin in 1985, the function of jails as rabble maintenance was linked to their distinctive administrative structure, associated with local government and imbued with extensive administrative discretion. Most sociologists at the time assumed that prisons were quite different, more bound by legal-rational forms of legitimation and more visible to courts and public monitoring (Jacobs 1977). In the subsequent decades, however, prisons have become decidedly more jail-like, in precisely the way that concerned Irwin. First, the hardening of sentencing laws that had already begun in the period of his research made it easier for the cycling of underclass people into jails to result in their longer-term incarceration in state prisons. Second, as the prison population has rapidly expanded because of these changes, prisoners are less and less likely to be professional criminals (the type whose social order Irwin studied in The Felon) and more and more likely to be members of the ordinary underclass whose repeated arrests and confinements in jails have increased their vulnerability to further incarceration. As a result, prisons, even when they have not deliberately abandoned the goal of rehabilitation, have increasingly found themselves engaged in the same sort of “rabble management” that Irwin saw in the jails of the 1980s.
Third, as they become overcrowded with high-need prisoners who often suffer from chronic physical and mental illnesses resulting from their lifestyles, prisons are the sites of experiences more and more like those that Irwin documented in jails: chaotic, dangerous, and inhumane. Finally, seeking to maintain control in the face of an increasingly volatile situation, correctional administration in prisons has become more jail-like in its reliance on administrative discretion. Thus the routine punishment in supermax prisons of twenty-three-hour-a-day solitary confinement, one of the harshest, most isolating forms of imprisonment ever used on a large scale, is generally imposed not by a court nor based on violations of legal prohibitions but at the largely unreviewable administrative discretion of prison managers, who classify prisoners according to risk and can keep them indefinitely in this setting based on simple suspicions that they are involved with prison gangs.
The Prison Crisis, Jails, and the Future of Incarceration
Largely as a result of having become more jail-like both in the populations they hold and in the form of institutional order they maintain, American prisons in the twenty-first century are undergoing a profound fiscal, administrative, and humanitarian crisis. California (Irwin’s home state and the site of most of his research) is an extreme but telling example of this. Decades of indiscriminate imprisonment of low-level offenders led California prisons to experience some twenty years of chronic hyper over crowding, with the system at more than 200 percent of design capacity and some prisons closer to 300 percent of capacity. Despite nearly two decades of federal court oversight, these conditions continued, with constitutional violations of health care provision causing prisoners to experience torture like pain and death from all manner of readily treatable chronic mental and physical conditions (see Plata/Coleman v. Brown, Opinion and Order Requiring Defendants to Implement Amendment Plan, June 20, 2013). In 2009 a special three-judge court handed down an unprecedented injunction ordering California to reduce its prison population by more than forty thousand. After the state appealed, in 2011, the Supreme Court affirmed the injunction (in Brown v. Plata), noting that prisons that fail to provide adequate health care are incompatible with respect for prisoners’ inherent “human dignity” and with “civilized society.”
As a result of Plata, California has adopted a reform policy known as realignment, which relies heavily on channeling people convicted of low-level (nonserious, nonviolent, nonsexual) felonies and parole violations into county jails rather than prisons. While this policy aims at reversing the tendency, discussed above, of making prisons more jail-like in their practices and populations, it places even more trust in institutions whose basic flaws remain much as Irwin described them more than a quarter of a century ago. This is a national trend, as many states find themselves rapidly shifting excess populations from prisons to jails. Another high-profile example is New York, where aggressive policing is credited with diminishing crime while not growing the prison population, but at the cost of sending more minority youth to jails (Zimring 2011).
Thus, as a factor in the reach of criminal justice power and despite nearly three decades of expanding imprisonment, jails loom as large as or larger than they did when Irwin conducted his path breaking study. As reform proposals place ever more reliance on jails as sites of justice and social control, his call to examine the jail sociologically is ever more vital.
Conclusion: Jails and the Way Forward
The path away from America’s prison crisis may lead through jail. While jails may have many positive aspects as sites of confinement, especially when compared with the prisons of mass incarceration, Irwin’s analysis points to features that could make the new, jail-based version of mass incarceration even worse. The local nature and relative obscurity of jails mean that legal review and due process, obtainable in prisons through the persistent efforts of civil rights lawyers, may be even harder to maintain in them. The historic focus of jails on what Irwin called “rabble management” threatens to undermine the opportunity presented by the present prison crisis to rethink America’s over reliance on confinement of all kinds (whether in prisons, jails, or immigration detention centers). It is vital that those of us committed to reversing the destructive effects of mass incarceration on American democracy and social equality expand our concern and our research from prisons to the jails that may replace them. More broadly, if the social damage of mass incarceration is to be undone, a commitment to conserving human dignity must replace the pessimistic posture of criminal justice toward “rabble management.” The republication of John Irwin’s Jail: Managing the Underclass in American Society is a most timely aid to that mission.
Jonathan Simon
Adrian A. Kragen Professor of Law
University of California, Berkeley
References
Alexander, Michelle. The New Jim Crow: mass incarceration in the Age of Colorblindness. New York: New Press, 2010.
Chevalier, Louis. 1973. Laboring Classes and Dangerous