Data showing that the current system does not work – and creates racial disparities - has historically fallen on deaf ears, with lawmakers seeing requests for change as special pleading from yet another interest group. Further, as elected representatives – many Democrats and Republicans alike – are hesitant to take up the issue out of a fear of appearing “soft on crime.”
In at a time of strained budgets and competing priorities, it may be useful to cast incarceration in different terms. The U.S. spends $11,000 annually per student in public elementary and secondary schools. Meanwhile, governments spend on average $25,000 to 30,000 per year to incarcerate someone. If this prison spending was reallocated to education, perhaps American labor would actually be on par with the highly trained global workforce.
Incarceration is not solely a civil rights issue. It is an economic one as well. Civil rights leaders have long understood the wisdom of harnessing economic power to end racial inequalities. Along with civil disobedience and grassroots organizing, they utilized the power of boycotts and economic withdrawals. The Montgomery Bus Boycott of 1955 inspired almost 1,000 boycotts in over 100 southern cities and 20,000 arrests. Boycotts are not mere protests; they are protests coupled with a display of market power. Indeed, Dr. King saw the boycotts as “nonviolence at its peak of power.”
Appealing to economics – by utilizing boycotts or making valid arguments about wise government spending - seizes what Professor Derrick Bell termed the “interest convergence.” His point is one of basic psychology: those in power will enact reforms to help those out of power when the powerful realize that such a change is in their own self-interest.
New Jim Crow author Michelle Alexander argues that using the “interest convergence” and economic arguments to create change allows people to sidestep the racial legacy of the justice system. She is right. But what she is unfortunately mistaken about is the wisdom of using the interest convergence. Using the interest convergence to talk about the costliness and waste of the criminal justice system has created an opportunity to convince state lawmakers to enact reforms now - to the benefit of people of color and the lives of Americans needlessly suffering behind bars. It has allowed us to partner with powerful unlikely allies to create new state laws that have sent thousands of black and brown Americans from prison back to their families and into the workforce - or to avoid prison altogether - while still protecting public safety and government reducing spending on a system that does not work.
The interest convergence is not fleeting. Humans almost always act in their own self-interest. Economics, money, taxes, and power are not fleeting. They have always been - and will remain - longstanding national issues long after the fiscal crisis. The fiscal crisis has just opened the door to a broader understanding of the criminal justice system as an important economic issue.
No matter how righteous the cause, no matter how just the argument, criminal justice reform will not spring from moral or racial justice arguments alone. Lawmakers and advocates who seek an end to mass incarceration must demonstrate why it is in the self-interest of the powerful majority to enact our recommendations. Previous civil rights leader knew this truth and applied it wisely. We have the opportunity to do the same and finally achieve change at the federal level and nationwide.
Chettiar is the director of the Justice Program at the Brennan Center for Justice at NYU Law School. The primary goal of the program is to end unnecessary incarceration.