Between 1925 to 1974, the U.S had an incarceration rate between 90 and 150 per 100,000 people.  Today, that rate is seven times that. Researcher Matthew DeMichele, Ph.D and Postdoctoral Scholar at the Penn State Justice Center, likens our current justice system to fast-food restaurants, “in which quality goes out the window, and quantity takes over. Why is this and how did it come to be this way? Below, DeMichele discusses his research work to answer to that question as well as provide effective alternatives to methods of mass incarceration: 


DeMichele: The U.S. incarcerates more people than any Western democracy. Our incarceration rates are roughly seven to ten times larger than other similar countries. In fact, we have an incarceration rate over 700 per 100,000 adults, whereas Australia, Canada, and Germany have rates between 90 and 150 per 100,000 in the population. Strangely, the incarceration rate in the U.S. remained around 120 per 100,000 from 1925 to 1974. Then, something happened to cause a drastic change to how we punish. No longer were law breakers to be rehabilitated or reintegrated into society. No longer were criminal justice officials expected to find ways to alleviate incarceration. Instead, the criminal justice system focused on efficiency, cost-effectiveness, and managerialism. And, to some extent, the justice system adopted the mentality of fast-food restaurants in which quality goes out the window, and quantity takes over. Simultaneous to the McDonalidization of justice, the U.S. also experienced drastic shifts in the treatment of working class populations with the discrediting of unions and labor protections.

Richard J. Donovan Correctional Facility in San Diego, CA. All images via the California Department of Corrections and Rehabilitation website

Some years ago I began studying why the U.S. incarcerates so many more people compared to other countries and why we lock-up so many more now than in the past. Ironically, I was surprised to find that crime had not increased during this time, but rather decreased. So, I knew other mechanisms were at play, but what could be driving such an approach to justice? I looked at our legal system and how it is embedded within a particular political-economic culture.

[superquote] Some countries choose to incarcerate, whereas others seek to treat the underlying causes of crime as a manifestation of social problems through welfare, education, and vocational training. [/superquote]

An inherent feature of capitalist societies is that there are poor people. In fact, capitalism is an economic approach that relies on income inequality to motivate the public. This approach allows some to amass great wealth, develops a strong middle class, and supports innovation, but it also promotes some of the largest income gaps in the world. All governments have approaches to dealing with individuals that fall to the bottom of the economic ladder. These people can be thought of as William Julius Wilson’s underclass in which they are trapped in a feedback look of poverty, criminality and substance abuse. Some countries choose to incarcerate, whereas others seek to treat the underlying causes of crime as a manifestation of social problems through welfare, education, and vocational training.

Valley State Prison, Chowchilla, CA.

Of course, poverty is not unique to the U.S. What is unique to the U.S. is how we have decided to treat our underclass. We have decided to demonize, criminalize, and institutionalize large sections of our population. Policy choices have been made to limit public education, welfare, and ameliorative approaches for the underclass. Instead, we have built more jails and prisons, hired more police officers, and passed laws for longer sentences.

I argue that in the U.S. there is a relatively unique way of thinking about crime, criminals, and crime control. This way of thinking encourages a high degree of subjectivity in legal decisions. U.S. prosecutors have an unheard of amount of discretion compared to other countries. Similarly, U.S. judges have little oversight and tremendous flexibility when making decisions. These may sound like small things, but they allow prosecutors and judges – many of which are elected – to make decisions with little evidence of their effectiveness. And, they are situated within a social narrative dedicated to punitiveness in which each legal actor tries to be more punitive than the next. This becomes most obvious during election cycles in which prosecutors and judges profess their commitment to incarceration. No doubt this is something that appeals to voters, especially because most of the people that have been incarcerated cannot vote due to felony restrictions.

California State Prison, Centinela, Imperial, CA

Legal culture alone has not made the incarceration boom possible. Instead, our legal system is embedded within a political-economic context in which conservative politics have replaced the once dominant social contract. At least since the mid-1970s, the U.S. political environment has shifted toward the right. This shift has altered the nature of the right-left divide in which, as Paul Pierson documented in Off-Center: A Republican Revolution, centrist political expectations have moved toward the right. Many may wonder what this has to do with incarceration. First, the adversarial nature of our criminal justice system ensures that the poorest of in our society are most susceptible to punishment. Second, working class protections such as powerful unions, wage negotiations, and welfare programs have been severely cut, if not eliminated. Third, mental health facilities have been closed, and the Bureau of Justice Statistics tells us that a bulk of jail inmates have been diagnosed with a mental disorder. Combining a legal culture favoring the wealthy, a society that limits worker protections, and the incarceration of the mentally ill creates a powder keg in which mass incarceration is nearly inevitable.

The question now is how to do we stop? How do we shift from a mass incarceration society to a society that consciously works to reduce the inequality of our justice system? I should point out that I do not have all the answers, and, if I did, they could not be spelled out so clearly in this short essay. However, what I do know is that the mass incarceration of adults, of children, and of the mentally ill is a result of policies. It is not an unintended consequence. No, mass incarceration has occurred because policymakers have passed laws that require long sentences, they have dedicated money to hiring more police, they have broadened prosecutorial discretion, among other changes. And, let us not forget that alternatives are available. Instead, of building prisons, we could build schools. Instead, of hiring more cops, we could hire more teachers. And, instead of sending the mentally ill to jails and prisons, we could be dedicated to understanding mental illness and treating it like any other medical condition.

 [superquote] There is no scientific evidence supporting prison as a way to improve people [/superquote]

These are only a few policy suggestions, but what is really needed is a new way to think about crime, criminals, and crime control. Some may think I am suggesting that we go “soft” on violent criminals. I am not. Some people do very bad things and need to be separated from society. But, we need to restrain the use of institutionalization and use it as sparingly as possible. We also must keep in mind that when a child commits such an act, the neighborhood, community, and society in which they live are responsible. When children commit heinous crimes, and a few do, we must ask: how did our education, welfare, and child protection services fail these children? There is no scientific evidence supporting prison as a way to improve people. Just as we know that eating too much fast-food leads to obesity and a host of health problems, we also know that a fast-food approach to justice fosters a host of social problems.


5 thoughts on “The “McDonaldization” of Justice

  1. thanks for your insightful essay on this subject. There is no meaningful dialogue at all in the mainstream media on this incredible problem. It’s like the elephant in the room. The issue of mass incarceration is emerging from the shadows. When I started advocating for changes in the laws charging children as adults and subjecting them to adult mandatory minimum sentences including lwop, we were a very small, voiceless group. I’ve seen it grow and grow since 2005. There is going to have to be a paradigm shift for there to be any real change, but I believe it is shifting. I think CA is going to be the leader. Whichever way CA goes, so goes the country. The death penalty is on the chopping block as is 3 strikes. Praying the people use their voting power and brain power to get this ball rolling. I believe abolition of the DP in CA will be the beginning of the end for it across this country.

  2. Thanks for your thoughts Pamela, and your advocacy. It’s unfortunate that the people of CA didn’t choose to abolish the death penalty last night. In the last couple of weeks we have had extensive conversations with folks and it was a bit disappointing how much the dialogue tended to veer towards aligning the death penalty with real justice. We did have one success though, reforming the three strikes law, which is a big step towards reform in CA and shrinking our HUGE prison population.

  3. Frightening analysis ( Truth). Locking up the working classes, regardless of age is a pandemic, possibly of colonialist mentality: Slavery, Divide & Rule policies still existing in countries socio- economic systems, long after independence. Capitalism is Satan’s philanthropy.

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