The Jail. John Irwin
of the legal revolution to reach the zone of discretionary justice, of which jails form the very core, had created the conditions for the expansion of criminalization on an unprecedented basis.
The Underclass
The leading sociologists of race and inequality in the 1980s, such as William Julius Wilson and Troy Duster, were just beginning to develop the idea of the underclass when Irwin published Jail in 1985 (Wilson’s seminal The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy was not published until 1987). The term was controversial from the start, with its ambiguity about whether moral or economic factors most defined the group’s low status. While Irwin was closer to Wilson and Duster in formulating the concept as primarily economic, his use of the term rabble to describe the members of the class captured precisely the sharp edge the concept carried for some on the political right (note the endorsement on Jail’s original back cover of by Charles Murray, who used the concept of the underclass in his 1984 book Losing Ground, on the conservative and moralistic side of the controversy).
A long tradition of critical criminology and sociology, dating back to Prince Pyotr Kropotkin and Karl Marx, observed the role of criminal law and the police in class control. The sociology of the early 1980s suggested that the class nature of American society was changing, with the underclass forming a distinctively hardened layer of poverty: no longer a “reserve labor army” (for that implies some potential to enter the labor market when needed) but a category of internal outcasts for whom the legacy of racialized slavery and apartheid in the United States lingered in the vacuum of social capital that deindustrialization had left in many American cities.
Jail was the first sociological and criminological monograph to analyze the underclass in relation to the activities of law enforcement and to foresee how the targeting of this class could reframe the purposes and logics of criminal justice. Influenced by reading Jail as a graduate student working on my dissertation, I began to observe parole agents in California (indeed operating in some of the same San Francisco neighborhoods where Irwin’s field work had taken place) using their largely unchallenged discretion to return ex-prisoners to prison for technical violations of their administrative parole conditions (rather than crimes). Like Irwin, I soon found strong evidence that this power heavily targeted those parolees who most fit the cluster of identities (of race, youth, neighborhood, and gender) he associated with “the rabble,” which were also coming to characterize more and more of the swelling correctional population (Simon 1993).
Irwin’s focus on the jail for its targeting of a racialized class of urban minority youth was early, and his sociological imagination of where those trends would go was astoundingly and sadly accurate. Today the racial disproportionality among prisoners and the formerly incarcerated is recognized as one of the defining characteristics of mass incarceration and is its most serious challenge to American democracy (Tonry 1996, Garland 2001, Western 2007, Alexander 2010). Five years into the great prison buildup, Irwin had made the crucial sociological move, associating the new aggressive criminal justice policies not with heightened crime levels but with an increasingly negative portrait of the urban poor.
As suggested by his provocative discussion of the underclass as a “rabble,” Irwin appreciated the Durkheimian undercurrents at work in criminal justice, the need for “folk demons” to help mobilize social solidarity, especially in times when wrenching social dislocations and increasing inequalities test that solidarity. Like few others writing at a time when progressive penal reform still seemed obtainable to many and critics tended to see the system largely in criminal justice policy terms, Irwin saw in jails the marriage of class-based social control and emotion-based moral panics. This view proved remarkably fruitful in analyzing the coming tidal wave of repression, and its influence is clear in a great deal of subsequent work.
Jail is the product of Irwin’s classic mid-twentieth-century tool kit of microsociological analysis of institutionalized schemas of action, based on firsthand field work and structural-functional analysis. You will not find here direct efforts to tie the analysis to the age of Ronald Reagan or the transformations in political economic governance now often abbreviated as neoliberalism, but for those of us who read it at the time, the fit was unmistakable. The pattern of intensive policing along well-defined urban corridors that Irwin found in his field work was part of a new order that geographers such as Mike Davis (1990) and Saskia Sassen (1991) would soon define. It was a landscape of growing inequalities in which the once-bridging structures of industrial society—unions, political party machines, and churches—had fallen away, leaving cities increasingly divided between a steeply hierarchical sector of knowledge workers and a service class (often composed of immigrants) working to meet their material needs. The remaining poor, Irwin’s rabble, were rapidly falling back toward the state of a nineteenth-century, preindustrial “dangerous class” (Chevalier 1973). San Francisco, Irwin’s primary research site, with its global technology industry and flows of both highly and low-skilled immigrants, was at the cutting edge of these general changes in American cities, whose implications for criminal justice institutions Irwin saw with clarity and precision.
The New Penology
In addition to recognizing the underclass’s crucial role in making sense of the jail and other aspects of contemporary criminal justice, Irwin saw and highlighted the management function of jails: the way police and the courts use them to sort, manage, and maintain rather than reform or even morally condemn members of the underclass. This marked an important change. Historically, repressive institutions, whether the prison or the workhouse, were envisioned as tools to eliminate, through reform or deterrence, the danger that crime or immorality posed to society. Irwin saw the jail as maintaining and even expanding the underclass (while also disciplining it and keeping it within geographic boundaries). A few years later, Malcolm Feeley and I cited his account of the jail in our more general argument that criminal justice in the 1990s was pivoting from a legal and moralizing enterprise to one of group-based risk management and actuarial judgments, something we called “the new penology” (Feely and Simon 1992).
The legal perception then and now is that jail is primarily a sort of antechamber to the main events of criminal trial and, if the defendant is found guilty, punishment (with serious punishment taking place in prisons). In this view of the justice system, legislators play the most important role, by defining the criminal laws, and then local courts do much of the rest, by applying those rules to individuals and their behaviors. In this world, jail is only a preliminary step, and one whose main role is simply to preserve options for the more relevant institutions, which lawyers and judges dominate.
Irwin’s field work revealed that jails function as the center of their own, less-visible system, whose aim is not adjudication and eventually resolution but the marking and selective disciplining of a disreputable class of people within geographic and behavioral limits imposed by the police. Police are the key actors in the jail world. By using their arrest powers to temporarily remove certain individuals to the jail and to threaten others with removal, police determine where people in this class will be allowed to concentrate and what kinds of behaviors will be tolerated there.
In a remarkable part of his analysis, Irwin called out James Q. Wilson and George L. Killing’s recently published Atlantic Monthly article “Broken Windows” (which appeared in 1982) as reflecting the potential for a dangerous extension of the jail’s exclusionary class logic. Wilson and Killing’s article argues that police can effectively reduce crime by aggressively enforcing low-level criminal laws against minor antisocial behavior (as the police saw it). This approach, which they misleadingly characterized as “fixing broken windows” (in fact it does nothing to repair or restore troubled neighborhoods), has become one of the most famous and consequential in modern crime policy history.
“Broken windows,” despite remaining controversial among police experts, has been crucial in encouraging and legitimizing the expansive use of criminal law against the urban poor beyond the context of violent or serious crime. Combined with the parallel hardening of sentencing laws and prosecutorial discretion, broken windows policing has been a key input to mass incarceration since the 1990s. With almost uncanny prescience, Irwin recognized the specific danger that this article would shape policy, and based on his field work identified in Jail the precise way in which this would happen: