Mass Incarceration and the War on Terror

A common criticism of the Bush Administration was that, in prosecuting the War on Terror, the administration turned its back on fundamental American ideals such as due process, the right to counsel, and habeas corpus. (See, for instance, Jane Mayer’s indispensable expose The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals, Doubleday, 2008.) Yet, in a recent article in the NYU Review of Law and Social Change, Georgetown law professor and former public defender James Forman Jr. suggests that the War on Terror was not so much a reversal, as the logical extension of the War on Crime in the era of mass incarceration. The full cite is “Exporting Harshness: How the War on Crime Helped Make the War on Terror Possible,” 33 NYU Rev. L. & Soc. Change 331 (2009). From the introduction (pp. 332-33):

While I share much of the criticism of how we have waged the war on terror, I suspect it is both too simple and ultimately too comforting to assert that the Bush administration alone remade our justice system and betrayed our values. …

By pursuing certain policies and using particular rhetoric domestically, I suggest, we have rendered thinkable what would otherwise have been unthinkable. Moreover, as the world’s largest jailer, we are increasingly desensitized to the harsh treatment of criminals. We have come to accept such excesses as casualties of war—whether on crime, drugs, or terror. Indeed, more than that, we no longer see what we do as special, different, or harsh. Certain practices have become what [NYU sociology professor] David Garland calls “the taken-for-granted features of contemporary crime policy.” In part for this reason, despite the mounting evidence regarding secret memos, inhumane prison conditions, coercive interrogations, and interference with defense lawyers, the Bush administration’s approach to the war on terror went largely unchecked and unchanged.

Forman argues that by placing all the blame on isolated Bush Administration officials, we avoid confronting our own responsibility (p. 339):

After all, to suggest that we were led—against our essential character—to do terrible things conveniently avoids some important questions. What caused our leaders to imagine such harsh tactics? Why did they think we would tolerate it? Why were they right? These questions matter because although the Bush administration has left office, unless we confront why they succeeded, many of the tactics they adopted may survive their departure.

The article is well worth reading in full, but especially Forman’s discussion of conditions of confinement in the U.S. One striking excerpt (p. 352):

America has so many jails and prisons, and each one is so large that it is easy to lose sight of the scope of the abuse. Consider that as recently as July 2008, a federal investigation concluded that the conditions in Chicago’s Cook County Jail violated the constitutional rights of its inmates. The report detailed numerous instances of physical abuse, inadequate health care, and unsanitary living conditions. Inmates were beaten by guards for no reason or as punishment for breaking rules. One inmate, after being accused of planting contraband, was beaten by multiple officers while lying handcuffed on the floor. The guards fractured his jaw, forcing him to undergo multiple surgeries and eat through a straw.

The Department of Justice investigation into the Cook County Jail rated barely one day’s story in the press. But to understand the relative scale of this scandal, consider that the daily population of the jail is approximately 9800 inmates, with nearly 100,000 people passing through yearly. This means the equivalent of the entire prison population of Germany (78,707), England (72,669), Italy (55,136), Spain (50,656), or France (50,714) has been subjected to these inhumane conditions each year.