How ‘reforms’ expand our racially unjust ‘criminal justice’ system
First published by the Milwaukee Neighborhood News Service, July 30, 2019. By Barbara J. Miner and Robert S. Smith.
As a teenager in Milwaukee, Caliph Muab-El got in with the wrong crowd, got in trouble and started carrying a gun. One day, he saw someone who had robbed him. He thought the guy was reaching for a gun, so he shot first, injuring the man. Muab-El later pleaded guilty to reckless injury with the use of a dangerous weapon.
|Caliph Muab-El, in his West Allis home|
Muab-El’s story highlights how parole, once seen as a reform, has evolved into a sophisticated form of control and surveillance and is a major factor in the state’s mass incarceration.
Every person on probation/parole in Wisconsin receives a long list of rules they must follow, known as Rules of Supervision. The rules are, in essence, a 24-7 system of control. If someone alleges that you broke even a single rule, for example that you went to Chicago for the day without permission, you can be apprehended and kept in custody while the allegation is investigated. If the allegation is proven, you can be re-imprisoned even if you did not commit a new crime — a practice known as “crimeless revocation.”
Muab-El knows how easy it is to seemingly violate the Rules of Supervision and be put behind bars. “As long as you are on parole, you have one foot in the cell and one foot in the free world,” he says. “At any time, both feet could be back in jail.”
He knows because it happened to him.
On Feb. 7, 2018, Muab-El was picked up by police and sent to the Columbia County Jail in Portage. The reason? An allegation was made that, four years earlier, Muab-El had committed a crime and had violated his Rules of Supervision.
The investigating police officer found no evidence to substantiate the allegation and no charges were filed. The Department of Corrections, however, has the authority to apprehend someone who is alleged to have violated their Rules of Supervision. In the case of Muab-El, it did so.
The case centered on allegations by the mother of Muab-El’s son that they had sex that she now claimed was non-consensual. Muab-El’s case finally came before an administrative law judge that summer.
In her decision, the judge noted that the allegations were brought four years after the fact “without any corroborating evidence,” and that the woman “has an obvious and clear bias against Mr. Muab-El.” The judge went on to note that that “the entire claim smacks of retaliation and an attempt to manipulate custody of the child.”
On July 24, the judge ruled that Muab-El had not violated his Rules of Supervision and ordered him released. He had spent six months in jail awaiting the decision.
Muab-El’s case also highlights how a person on probation/parole has diminished freedoms and fewer constitutional rights. For instance:
Mere allegations are sufficient cause to be jailed. Until a hearing is requested, there is no right to bail. When there is a hearing on the allegations, the hearing is in the jail or prison and the public is not allowed, not even a family member. At the hearing, hearsay evidence is allowed. There is no presumption of innocence. The burden of proof is not “beyond a reasonable doubt” but a looser standard of “the preponderance of the evidence.”
Muab-El, who moved to West Allis this spring, is still subject to his Rules of Supervision and remains in a constant state of anxiety.
“Everything you do is censored, is under surveillance,” he says.
“You are not free,” he continues. “You are still a slave.”
If all goes well, Caliph Muab-El will be off parole in four years. He will be 41 years old and will have spent almost two-thirds of his life under the control of the criminalization industry for a crime he committed at age 15.
Multiply Muab-El’s story
In the popular mind, mass incarceration refers to the unprecedented number of people in prison, in particular African Americans. But the problem is more complex.
Probation and parole — euphemistically known as “community corrections” —have become essential to controlling Black bodies and criminalizing conduct that is part of everyday living. It is increasingly clear that we will never end the epidemic of mass incarceration without reforming our system of probation and parole.
A report in January by the Columbia University Justice Lab notes that probation and parole, rather than worthwhile reforms, are increasingly recognized “as a contributor, rather than an alternative,” to mass incarceration.
This is especially true in Wisconsin.
Almost 65,000 people in Wisconsin were under probation or parole in 2016 — “just shy of the population of Oshkosh,” according to the Columbia University Justice Lab. The number dwarfs those actually in prison that year, about 23,000 people. (Parole is a term used both by the general public and by the federal Bureau of Justice Statistics. In Wisconsin, most formerly incarcerated people are not on parole, but are under a system of post-prison control known as “extended supervision.” Rules of Supervision apply to both groups.)
Overall, the ratio of people on parole in Wisconsin exceeds the national average, and the length of time on parole is nearly twice the national average.
Consider this disturbing statistic: roughly 37 percent of admissions to the state’s prisons in 2017 involved people who had not committed a new crime. They had merely violated one of their Rules of Supervision and had their parole or probation revoked— a practice known as “rules violation” or “crimeless revocation.”
African Americans are disproportionately affected. In 2017, Black people were incarcerated for violating their Rules of Supervision more than twice as often as whites, according to the Columbia University Justice Lab.
The disparity feeds into broader racial inequities. Overall, although Black people made up only 6 percent of Wisconsin’s adult population, they made up 41 percent of the state’s prison population in 2017. That same year, U.S. Census Bureau data show that roughly 1 in 14 Black men in Wisconsin were in prison, double the national average.
Learning from history
There is no easy answer to ending the criminalization of Black people in this country. This cornerstone to structural racism is deeply woven into our nation’s DNA.
At the very least, however, we must understand how our criminalization industry is a bedrock of white supremacy, integral to white control over Black bodies. This desire for control was at the heart of slavery when the nation was founded, of the Black Codes immediately following emancipation, of Jim Crow era segregation, and of mass criminalization today.
When one system of racial control was thwarted, a new system emerged.
Slavery lasted almost 250 years and only ended after a bloody Civil War. After the war, white southerners developed “Black Codes” that severely limited the freedom of African Americans and made them a source of cheap labor to rebuild the South and maintain white supremacy.
The Black Codes helped pave the way for the system of Jim Crow that mandated racial segregation and second-class citizenship for all Black people. Following the formal end of Jim Crow a half century ago, mass incarceration became central to maintaining white supremacy. (We use the term “white supremacy” to include not just overtly racist ideology, but also the social, political and economic structures that promote individual and collective white privilege.)
The similarities between history and today’s systems of control become clear when comparing Wisconsin’s Rules of Supervision for people on parole/probation, to the Black Codes used by Southern states to control Black people after the abolition of slavery.
Both rely on vague yet sweeping grounds for being apprehended and imprisoned. Both control and limit mobility and economic options. Both criminalize activities that are a part of daily life. Both uphold a core tenet of white supremacy — that Black bodies are subject to both constant surveillance and serve as a source of exploitation and profits.
The infamous Mississippi Black Codes of 1865, in its section on “vagrants,” stipulates:
That all rogues and vagabonds, idle and dissipated persons, beggars, jugglers, or persons practicing unlawful games or plays, runaways, common drunkards, common nightwalkers, pilferers, lewd, wanton, or lascivious persons, in speech or behavior, common railer and brawlers, persons who neglect their calling or employment, misspend what they earn, or do not provide for the support of themselves or their families or dependents, and all other idle and disorderly persons, including all who neglect all lawful business, or habitually misspend their time by frequenting houses of ill-fame, gaming houses, or tippling shops, shall be deemed and considered vagrants … and, on conviction thereof shall be fined … and be imprisoned at the discretion of the court …
Wisconsin’s Rules of Supervision are similarly all-encompassing. Here are six of the standard 18 rules:
• Avoid all conduct which is in violation of federal or state statute, municipal or country ordinances, tribal law, or which is not in the best interest of the public welfare of your rehabilitation.
• Inform your agent of your whereabouts and activities as he/she directs.
• Make yourself available for searches including but not limited to residence, property, computer, cell phone or another electronic device under you control.
• Obtain approval from your agent prior to changing residence or employment.
• Obtain approval and a travel permit from your agent prior to leaving the State of Wisconsin.
• Obtain approval from your agent prior to borrowing money or purchasing on credit.
Most people have 25 to 55 rules. One of the most common additions: “Shall not possess or consume any alcohol. You shall not be in any establishment where the primary purpose is the sale of alcohol. This includes but is not limited to taverns, bars or liquor stores.”
Here in Wisconsin, there are several important reform initiatives currently underway.
In a recent report, the American Civil Liberties outlined reforms to cut by half Wisconsin’s prison population. They range from ending crimeless revocations, to improved mental health services, to community-based alternatives to incarceration. (For information, search the web for “Smart Justice ACLU of Wisconsin.”)
The campaign to close the Milwaukee Secure Detention Facility also has garnered widespread support from community and religious organizations, and national groups such as JustLeadership USA. (Search for “Close MSDF.”)
The MSDF opened as a medium-security prison in downtown Milwaukee in 2001. It was the first state facility in the country specifically designed to incarcerate people who may have violated their Rules of Supervision.
MSDF is infamous nationally for its inhumane conditions, from overcrowding, to insufficient sufficient heating and air conditioning, to lack of sunlight and outdoor recreation. Seventeen people have died at the facility since it opened.
In his writings, the noted author Ta-Nehisi Coates has poignantly described why this country’s criminalization of Blacks—from policing through incarceration and parole—remains remarkably resilient. Referring to police departments, but within the context of this country’s overall criminal justice system, Coates notes:
“… police departments… have been endowed with the authority to destroy your body. It does not matter if the destruction is the result of an unfortunate overreaction. It does not matter if it originates in a misunderstanding. It does not matter if the destruction springs from a foolish policy…All of this is common to black people. And all of this is old for black people. No one is held responsible.”
It is long past time to demand responsibility and, especially for white allies, to go beyond one’s comfort zone in demanding change. Equally important, we must ensure that reform proposals guard against creating new mechanisms of control and inadvertently expanding our racially unjust “criminal justice” system.
During the Civil Rights Movement, Martin Luther King, Jr., came under attack from white liberals for his focus on direct action and civil disobedience. In his 1963 “Letter from a Birmingham Jail,” King chastised white moderates who prefer “order” to justice.
Racism is rooted not just in “the hateful words and actions of bad people,” King wrote, but also in “the appalling silence of the good people."
Barbara Miner is a Milwaukee-based writer and photograph. Robert S. Smith is a professor in the history department at Marquette University and director of the university's Center for Urban Research, Teaching and Outreach.