Prison Law Blog

Sara Mayeux

Mass Incarceration and the War on Terror

with 9 comments

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.

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Written by sara

February 16, 2010 at 7:56 am

9 Responses

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  1. [...] Mayeux addresses this issue in a post today on her Prison Law Blog. She quotes from a recent law journal article called “Exporting Harshness: How the War on Crime [...]

    • Sara,

      This is a subject that has been addressed by others as well, for example: cf. John T. Parry’s “Torture Nation, Torture Law” (2009): http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1265124 and

      Leo, Richard A. and Koenig, Alexa. “Police Interrogation and Coercion in Domestic American History: Lessons for the War on Terror,” in Torture, Law and War: What are the Moral and Legal Boundaries of the Use of Coercion in Interrogation, Martha Nussbaum & Scott Anderson, eds., University of Chicago Press, Forthcoming. University of San Francisco Law Research Paper No. 2010-04. Available: http://ssrn.com/abstract=1533402

      See too Colin Dayan’s (including Jeremy Waldron’s foreword) The Story of Cruel and Unusual (Cambridge, MA: MIT Press, 2007; a Boston Review book)

      Best wishes,
      Patrick

      Patrick S. O'Donnell

      February 16, 2010 at 4:55 pm

      • Patrick: Thanks for the links!

        sara

        February 16, 2010 at 5:17 pm

  2. [...] be to improve their conditions of confinement. This idea that this would happen is based upon two interrelated myths: first, the fantasy that American prison conditions are relatively humane; and second, the notion [...]

  3. [...] I’m in the midst of some heavy reading, like Michael Dillon and Julian Reed’s The Liberal Way of War: Killing to Make Life Live, and Veena Das’ Life and Words: Violence and the Descent into the Ordinary. This is not to say that these readings are drawing my thoughts away from the seemingly more frivolous subject of clothes — not at all. I’m reading these books for my manuscript, the reason for my absence here, but these are also inspiring me to ask some questions about how we begin to conceptualize carceral chic in conditions where the prison-industrial complex is both normalized and globalized, both via a language of “securitization” but also an analytic of permanent war? (The distinction between security, understood as measures undertaken to preserve life, and war, as violence undertaken to kill enemies, is increasingly blurred in this moment.) [...]

  4. [...] Mayeux addresses this issue in a post today on her Prison Law Blog. She quotes from a recent law journal article called “Exporting Harshness: How the War on Crime [...]

  5. [...] law. Readers interested in the bleed-through between the War on Terror and the War on Crime (which I’ve touched on before) will want to bookmark the site, if only because it promises to provide access to the latest briefs [...]

  6. [...] 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 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. (H/T Prison Law Blog) [...]

  7. [...] 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 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. (H/T Prison Law Blog) [...]


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