i Breaking the Pendulum ii iii Breaking the Pendulum The Long Struggle Over Criminal Justice z PHILIP GOODMAN JOSHUA PAGE and MICHELLE PHELPS 1 iv 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2017 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. CIP data is on file at the Library of Congress ISBN 978– 0– 19– 997605– 8 (hbk) ISBN 978–0–19–997606–5 (pbk) 1 3 5 7 9 8 6 4 2 Paperback printed by WebCom, Inc., Canada Hardback printed by Bridgeport National Bindery, Inc., United States of America v To our parents, with love vi vii Contents Preface  ix 1. Penal Development and Plate Tectonics  1 2. The Pain of Penitence in the Early Republic  20 3. Reform and Repression in the Progressive Era  42 4. Rehabilitation— All Things to All People  70 5. Deconstructing the Carceral State  95 6. Beyond the Pendulum  123 Notes  141 Selected Bibliography  191 Index  209 viii ix Preface On July 16, 2015, Barack Obama visited the El Reno Federal Correctional Institution in Oklahoma, becoming the first sitting president to visit a federal prison. A few days earlier, he had publicly questioned the United State’s mas- sive criminal justice system: “We have to consider whether this is this smartest way for us both to control crime and to rehabilitate individuals.”1 Though measured, this statement was remarkable—just several years earlier it would have been practically unthinkable. A little over a year before Obama made history, the New York Times ran an editorial with the declarative title, “End Mass Incarceration Now.”2 The piece boldly insisted that the country’s penal polices were deeply harmful, especially to poor minority communities: The severity is evident in the devastation wrought on America’s poor- est and least educated, destroying neighborhoods and families. From 1980 to 2000, the number of children with fathers in prison rose from 350,000 to 2.1 million. Since race and poverty overlap so signifi- cantly, the weight of our criminal justice experiment continues to fall overwhelmingly on communities of color, and particularly on young black men. To end the “insanity,” the editorial urged lawmakers to reduce the length of prison sentences, increase rehabilitation opportunities, and facilitate former prisoners’ transition back into the community. The president’s prison tour and the Times editorial indicated a shift in the criminal justice landscape. Statistics supported this view too: after decades of unprecedented growth, the nation’s prison population finally leveled off in 2010, leading some to wonder if the era of “mass incarceration”