Punishment, Inequality, and the Future of Mass Incarceration

The British sociologist, T.H. Marshall famously described citizenship as a “basic human equality associated with . . . full membership of a community.” He went on to describe citizenship as “the architect of . . . social inequality.” By this he meant that the inequalities that arise under particular institutions of citizenship appear natural and justified. Such inequalities are the immediate result of the rules of belonging to a given community. The injustice of such institutionalized inequalities runs counter to conventional intuitions, and remedies are difficult to conceive and implement. Since the zenith of the Civil Rights Movement in the late 1960s, the character and extent of American citizenship have been redrawn by the steady growth in the penal population. The emergence of mass imprisonment—historically high and concentrated rates of incarceration—represents a new type of institutionalized inequality. As in Marshall’s formulation, the inequality arising under these new rules of citizenship (to the extent it is visible at all) seems justified, delivering harsh punishment to those who flout the law. In this Article, we trace the causes, contours, and consequences of the American prison boom. We argue that rapid growth in the penal system was fueled by a punitive turn in punishment and the deteriorating economic situation of black men and men with low levels of education. The explosion in prison and jail populations was felt most acutely by