Prison Law Blog

Sara Mayeux

Will Future Generations Condemn Us for Our Prison System?

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Kwame Anthony Appiah. Photo: Princeton University, Office of Communications, Denise Applewhite (2005)

Slavery, book-burning, waterboarding. In this Washington Post op-ed, which has been been making the rounds of the blogosphere, Princeton philosopher Kwame Anthony Appiah asks what from today’s society will go the way of these once widely accepted, now universally discredited institutions and practices. OK, so one might quibble with Appiah’s examples since waterboarding has turned out not to be so universally discredited after all. And while the antebellum American plantation variant of slavery may be a thing of the past, other forms of slavery persist around the world.

Nevertheless: it’s worth noting that in contemplating what institutions might earn our grandchildren’s opprobrium, Appiah lists the prison system first among them:

Roughly 1 percent of adults in this country are incarcerated. We have 4 percent of the world’s population but 25 percent of its prisoners. No other nation has as large a proportion of its population in prison; even China’s rate is less than half of ours. What’s more, the majority of our prisoners are non-violent offenders, many of them detained on drug charges. (Whether a country that was truly free would criminalize recreational drug use is a related question worth pondering.)

And the full extent of the punishment prisoners face isn’t detailed in any judge’s sentence. More than 100,000 inmates suffer sexual abuse, including rape, each year; some contract HIV as a result. Our country holds at least 25,000 prisoners in isolation in so-called supermax facilities, under conditions that many psychologists say amount to torture.

Of course, the irony is that the modern penitentiary was invented as a humane alternative to corporal and capital punishment.

I started out writing a much longer post on Appiah’s argument, and various pundits’ responses to it so far. But since the op-ed is, at least in part, a super-mini-preview of his new book, The Honor Code: How Moral Revolutions Happen (Norton, 2010), I decided I’d rather wait until I’ve read said book in full. In the meantime, I’d be curious to hear any thoughts that readers may have about whether today’s prison system will and/or ought to be tomorrow’s morally odious relic — and if so, how, when, and why that will happen.

Also in the meantime, if I were going to write a longer post on this topic, it would probably include some reference to one of my favorite works of legal history: John Langbein‘s Torture and the Law of Proof. At one level of specificity, it’s an explanation of how and why 18th century Europe came to abolish the use of torture in the investigation and prosecution of crime. But more generally, it’s about the idea that legal institutions and practices do not change because someone finally comes up with superior philosophical or moral reasoning, or because leaders suddenly have a humanitarian change of heart. Just as Appiah notes of slavery, Langbein points out that counterarguments to torture had been around for as long as the practice itself. Those arguments had not previously prevailed in Continental Europe because for a long time there seemed to be no workable alternative criminal justice system not dependent on torture (for various reasons specific to technicalities of European law that you should read the book if you’re curious about). Though 18th century publicists like Beccaria and Voltaire played a role in the abolition of torture, much longer-term structural and systemic legal changes made abolition possible by creating a world in which there were alternatives. The pen, Langbein argues, did not alone “prove[] mightier than the rack” (see p. 64).

For proponents of criminal justice reform, it may be more important to work on developing, implementing, and refining legal and practical alternatives to imprisonment than to perfecting grand humanitarian arguments against the prison-industrial complex. This is not because the arguments are inconsequential, but the arguments are already there; what’s needed is to create the conditions in which they can be convincing. This blog notwithstanding, I’m not much of a policy wonk by temperament. But ultimately, local policy experiments like drug decriminalization in Portugal or Hawaii’s HOPE program (PDF link) may spur more change than any amount of rhetoric.

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Written by sara

September 30, 2010 at 12:50 pm

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