Queer Lockdown: Coming to Terms with the Ongoing Criminalization of LGBTQ Communities

Prison Nation: Homeland of America’s Poor and Disenfranchised

The prison state looms large in the United States and exacts a wildly disproportionate impact on the poor. In 2007, there were nearly 2.3 million people living directly under the auspices of the criminal justice system, and that number grows daily.¹ This renders the U.S. the world’s number one jailer, both in total number of incarcerated and in prisoners per capita. This dubious distinction is not a coincidence but rather a trend thirty years in the making. While it is tempting to link the exponential use of incarceration to an increase in crime over time, such a claim is simply not supported by the facts.² Violent crime has not increased commensurate with the rise in the prison population. However, in a politically conservative era, punitive lawmaking has held sway pursuant to “tough-on-crime” polices that target much of the population engaged in low-level property and drug crimes. Consequently, prisons have devolved into a warehouse for generations of poor people trapped by the so-called “war on drugs,” mandatory minimum sentences, and aggressive policing of low-income communities, which puts them at risk of increased criminal justice involvement.³

From an economic standpoint, the proliferation of the penal state has become the primary avenue for policymakers to address the depth and complexity of social problems—in particular, the lack of job opportunities for a large percentage of the population unprepared for employment in the post-industrial age.⁴ The fact that the overwhelming majority of incarcerated people are poor makes the continuation of this system possible, owing to their lack of political currency. That two-thirds are people of color makes it acceptable as a political matter, due to the persistence of racism in America and the historical correlation between race and servitude.⁵

No broad examination of economic justice for low-income people, queer or otherwise, can proceed without confronting this prison crisis and analyzing the economic foundation upon which our prison culture is built. Incarceration, operating now at an unprecedented level, is a direct expression of capitalism in its most crass iteration. What has come to be broadly referred to as the “prison industrial complex” references the fact that the prison boom is not a reflection of increased criminal activity but rather the manifestation of a complex web of economic interests that has made prison construction a cornerstone of economic development in the last three decades.⁶ Corporate (if not government)⁷ wealth from prison construction skyrocketed, along with the various industries required to effect the administration and servicing of this system. The people inside the prisons can be said to provide a source of raw material, both for the cheap production of goods by prison labor and for the consumption of basic goods required by the burgeoning population of inmates themselves.⁸

Incarceration and post-incarceration stigma takes a huge toll on communities. Siphoning off enormous human resources from the low-income communities that need them most has become the touchstone of resistance to the expansion of the prison system. As a pragmatic reaction to mass incarceration, government, NGOs, and community-based organizations have focused on prisoner “reentry,” a term that has become part of the criminal justice lexicon. Prisoner reentry, at its core, focuses on the reintegration of prisoners (typically returning to their communities of origin) after a term of incarceration. As a practical matter, release from prison should coincide with social and economic support, such as assistance with employment, housing, drug treatment, family reunification, and other priorities.⁹ However, reentry policy and practice do not focus on stemming the tide of mass incarceration but rather analyze and advocate for economic and social service resources to assist the formerly incarcerated in avoiding re-arrest and creating a tide of cyclical incarceration.¹⁰

There are special difficulties faced by those released from prison that are more hidden and less well understood. These are civil barriers associated with criminal convictions that present legal obstacles to reintegration.¹¹ These “collateral consequences” of conviction include restricted access to employment, bars to public and private housing, public benefits, family reunification, and restrictions on many of life’s necessities that invariably create an environment inhospitable to successful reintegration.¹² Much has been written about voter disenfranchisement and the impact it has on political deterioration in poor communities,¹³ but many typical sanctions also create barriers on a more immediate and fundamental level. These roadblocks derive from a patchwork of federal, state, and regulatory frameworks that limit participation in critical areas of life and are difficult to address under a unified legal framework because their impact varies from state to state. Advocates have recently focused more attention on dismantling legal collateral sanctions to assist in reentry.¹⁴

1. Office of Justice Programs, Bureau of Justice Statistics, U.S. Department of Justice, Prisoners in 2007 (2008) http://www.ojp.usdoj.gov/bjs/pub/press/p07ppuspr.htm. [↩]
2. See Marc Mauer, Race to Incarcerate (2nd ed., 2006) (examining three decades of prison expansion and the impact of the drug war on the African American community); see generally Bruce Western, Punishment and Inequality in America (2006) (arguing that the dramatic expansion of the prison population has deepened racial and class inequality); see also Becky Pettit and Bruce Western, Mass Imprisonment And The Life Course: Race And Class Inequality In U.S. Incarceration, 69 AM. SOC. REV. 151 (2004) (describing racial inequalities in imprisonment). [↩]
3. Pettit and Western, Life Course supra note 6, at 151; see also Christian Parenti, Lockdown America: Police and Prisons in the Age of Crisis (2000): 57-58 (documents the advent of militarized policing, the war on drugs, and the growth of the prison population). [↩]
4. See Ruth Wilson Gilmore, “Globalisation and U.S. Prison Growth: From Military Keynesianism to Post-Keynesian Militarism,” 40. Race & Class (1998/99): 171, 178; see also Parenti, supra note 7, at 214. [↩]
5. Angela Y. Davis, Are Prisons Obsolete? (2003): 22-24. [↩]
6. Id. at 84. See generally Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (2007) (providing explanation for prison buildup by looking at how political and economic forces, ranging from global to local, conjoined to produce the prison boom). [↩]
7. Davis, supra note 9, at 85. State governments have had financial difficulty maintaining the prison population. Recently, a federal three-judge panel ordered the California prison system to reduce overcrowding by as many as 55,000 inmates in order to provide a constitutional level of medical and mental health care. See Solomon Moore, “Court Orders California to Cut Prison Population,” N.Y. Times, February 10, 2009 http://www.nytimes.com/2009/02/10/us/10prison.html. [↩]
8. Davis, supra note 9, at 88. [↩]
9. Jeremy Travis, et. al., From Prison to Home: The Dimensions and Consequences of Prisoner Reentry, (2001): 25, 31, and 35 http://www.urban.org/UploadedPDF/from_prison_to_home.pdf. [↩]
10. See generally, e.g., “Report of the Re-Entry Policy Council: Charting the Safe and Successful Return of Prisoners to the Community” (2003) www.reentrypolicy.org. [↩]
11. See generally Marc Mauer and Meda Chesney-Lind, eds., Invisible Punishment: The Collateral Consequences of Mass Imprisonment (2002) (an early compilation of essays of collateral consequences); see also Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues faced by Formerly Incarcerated Individuals, 86 B.U. L. REV. 623 (2006) (proposing an approach that fully integrates collateral consequences and reentry). [↩]
12. See generally Nora V. Demleitmer, Collateral Damage: No Reentry for Drug Offenders, 47 VILL. L. REV. 1027 (2002); Expanding Collateral Sanctions: The Hidden Costs of Child Support Enforcement Against Incarcerated Parents, 13 GEO. J. ON POVERTY L. & POL’Y 313, 315-319 (2006) (prisoner’s child support arrears constitute an additional barrier to reentry) [Hereinafter Cammett, Costs]. [↩]
13.  See e.g. Christopher Uggen & Jeff Manza, Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States, 67 AM. SOC. REV. 777 (2002). An estimated 5.3 million Americans are currently denied the right to vote because some laws prohibit voting by people with felony convictions. This obstacle to participation in democratic life is exacerbated by racial disparities in the criminal justice system, resulting in an estimated 13% of black men unable to vote. [↩]
14. Some examples are Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction: A State-by-State Resource Guide (2004) (addressing an array of sanctions in a state-by-by state survey) http://www.lac.org/roadblocks-to-reentry (last accessed on June 16, 2009); National H.I.R.E. Network http://www.hirenetwork.org (providing employment resources for people with criminal convictions) (last accessed on June 16, 2009); Center for Constitutional Rights, The Campaign for Telephone Justice (grassroots organizing to challenge excessive phone surcharges on family members receiving calls from N.Y. state prisons) http://ccrjustice.org/ (last accessed on June 16, 2009). Legal services offices are also integrating holistic services into criminal defense practice, e.g., Bronx Defenders http://bronxdefenders.org/?page=content¶m=our_practice (last accessed on June 16, 2009); Neighborhood Defender Service of Harlem http://www.ndsny.org/programs.htm (last accessed on June 18, 2009); The Public Defender Service for the District of Columbia http://www.pdsdc.org/PDS/CivilLegalServices.aspx (last accessed on June 16, 2009). [↩]