The Prison System Isn't Broken

Working as Designed

The word "broken" does a lot of work in American political discourse. The immigration system is broken. Healthcare is broken. The criminal justice system is broken.

"Broken" implies that something once functioned properly and has since deteriorated. It implies that the right repair (better funding, smarter policy, more training) could restore it. It implies good intentions gone wrong.

What if the criminal justice system isn't broken at all? What if mass incarceration, grotesque racial disparities, sky-high recidivism, and the systematic dehumanization of millions of people aren't malfunctions but features? What if the system is doing exactly what it was built to do, just not what it claims to do?

This isn't a rhetorical provocation. It's an argument with a substantial body of evidence behind it.

The Exception Clause

Start with the text. The Thirteenth Amendment to the United States Constitution, ratified in 1865, abolished slavery and involuntary servitude "except as a punishment for crime whereof the party shall have been duly convicted."

Read that again. Except as a punishment for crime.

The amendment that ended slavery contains a loophole large enough to drive a prison-industrial complex through. And almost immediately after ratification, Southern states began doing exactly that. The Black Codes of the late 1860s criminalized vagrancy, loitering, breach of labor contracts, and other offenses designed to ensnare formerly enslaved people. Convict leasing, the practice of renting prisoners to private businesses, became the primary mechanism for maintaining a coerced Black labor force after emancipation.

This isn't ancient history dressed up as relevance. The through-line from convict leasing to modern prison labor is direct and documented. Prisoners in the United States today produce goods and provide services for both government agencies and private companies, often for pennies per hour. The average prison wage ranges from $0.14 to $1.41 per hour, according to a 2022 ACLU report. In several states, incarcerated workers receive no compensation at all.

You can call this many things. "Broken" isn't one of them. The system is extracting labor from a captive population at below-market rates, which is precisely what it has been doing, in various forms, since 1865.

The New Jim Crow

Michelle Alexander's The New Jim Crow, published in 2010, made an argument that was controversial at the time and has since become difficult to seriously contest: mass incarceration functions as a system of racial control that operates through formally race-neutral mechanisms.

The War on Drugs is the clearest example. Exposed by journalist Dan Baum in a 2016 Harper's article, John Ehrlichman, Nixon's domestic policy advisor, said the quiet part out loud: "We knew we couldn't make it illegal to be either against the war or Black, but by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities."

The sentencing disparities that followed were staggering. The 100-to-1 crack-to-powder cocaine sentencing ratio, in effect from 1986 to 2010, meant that possessing five grams of crack carried the same mandatory minimum sentence as possessing 500 grams of powder cocaine. Pharmacologically, crack and powder cocaine are the same drug. The difference was who used which form, and that difference tracked almost perfectly along racial lines.

The Fair Sentencing Act of 2010 reduced the disparity to 18-to-1. Not 1-to-1. Eighteen to one. And it wasn't retroactive, leaving thousands of people in prison under sentences that the government itself had acknowledged were unjust.

The Numbers

The United States incarcerates more people than any other country on Earth, both in absolute numbers and per capita. Roughly 1.9 million people are in prison or jail on any given day. The incarceration rate is approximately 664 per 100,000 residents. For comparison: Canada is 104. Germany is 69. Japan is 38.

Black Americans are incarcerated at nearly five times the rate of white Americans. For drug offenses specifically, despite roughly equal rates of drug use across racial groups, Black people are arrested at 3.73 times the rate of white people, according to ACLU analyses of FBI data.

The recidivism numbers are equally damning, but damning of the system, not the people in it. Within five years of release, roughly 66% of formerly incarcerated people are rearrested. Within nine years, it's 83%. These are not the statistics of a system designed to rehabilitate. They're the statistics of a system designed to recycle.

If the goal were public safety, you'd expect incarceration rates to correlate with crime rates. They don't. Crime rates in the U.S. peaked in the early 1990s and have declined significantly since. The incarceration rate continued climbing until 2009 and has decreased only modestly since. The Brennan Center for Justice estimates that increased incarceration accounted for roughly zero percent of the crime decline in the 2000s.

So the system doesn't reduce crime, doesn't rehabilitate, costs roughly $81 billion per year in direct expenditures alone, and produces devastating collateral consequences for families and communities. How does something this expensive and this ineffective at its stated purpose persist?

Because its stated purpose isn't its actual purpose.

The Political Economy of Cages

Ruth Wilson Gilmore's Golden Gulag examines California's prison boom from the 1980s through the 2000s and identifies the economic logic underneath. Prisons were built in economically depressed rural areas that had lost agricultural jobs and needed replacement employers. The prison construction boom created jobs (guards, administrators, contractors, suppliers) in communities that had few other options.

This creates a constituency for incarceration. Prison guard unions became major political donors in California, supporting tough-on-crime candidates and opposing sentencing reform. Towns that depend on prisons for employment have direct economic incentives to maintain or increase the incarcerated population. The California Correctional Peace Officers Association spent over $100 million on political campaigns between 1998 and 2018.

Add the private prison industry. CoreCivic and GEO Group, the two largest private prison operators, generate billions in annual revenue. Their business model depends on maintaining a supply of incarcerated bodies. They lobby for policies that increase incarceration: mandatory minimums, three-strikes laws, immigration detention expansion. They have explicit occupancy guarantees in their government contracts, typically 80-90%, meaning taxpayers pay for empty beds if the prison population drops.

This is not a system that is trying and failing to rehabilitate people. This is a system that has organized a set of economic interests around the continuation of mass incarceration. The dysfunction is the business model.

Collateral Consequences

Incarceration doesn't end at the prison gate. The collateral consequences extend into every area of civic life.

In most states, a felony conviction means losing the right to vote, temporarily or permanently depending on the jurisdiction. An estimated 4.6 million Americans are disenfranchised due to felony convictions, according to the Sentencing Project. In several states, the disenfranchised population exceeds the margin of victory in recent elections. This isn't incidental. Removing millions of disproportionately Black and brown citizens from the electorate has predictable effects on political outcomes.

Employment discrimination against formerly incarcerated people is legal in most contexts. Housing discrimination is rampant. Access to public benefits is restricted. The result is a permanent underclass, people who have nominally served their sentence but remain effectively punished for the rest of their lives. And when the conditions of that permanent punishment make reoffending more likely, the system gets to process them again.

What "Reform" Misses

Most criminal justice reform operates on the assumption that the system is broken and needs fixing. More training for police. Better conditions in prisons. Sentencing reform at the margins. Reentry programs.

These aren't worthless. Any reduction in suffering matters. But they misdiagnose the problem. If the system is working as designed, if it's successfully extracting labor, controlling populations, generating revenue, and maintaining political power, then reforms that leave the basic structure intact will be absorbed and neutralized.

You can put a fresh coat of paint on a building designed for a specific purpose, but it's still going to function as that building. The American carceral state wasn't built for rehabilitation and then corrupted. It was built for control, and it has performed that function with remarkable consistency for over 150 years.

Saying the system is broken is comfortable. It implies that the people running it share your values and just need better tools. Saying the system is working means confronting the possibility that the values embedded in the system are not the values we claim to hold, and that fixing it requires not reform but replacement.

That's a harder conversation. It's also the only honest one.