Historian Rebecca McLennan on “When Felons Were Human”
Thanks to a reader who sent me this article by Berkeley historian Rebecca McLennan, which traces the nineteenth-century legal and political changes that have enabled twentieth-century Americans to write prisoners out of the categories of “human” and “citizen.” McLennan writes:
Why do the courts, lawmakers, and majority opinion ignore the mounting evidence that a large-scale human rights crisis is underway in the United States? Why, on those occasions when news media document the most extreme prison abuses, do few of us conceptualize them as human rights abuses? Why, in a country where mass movements mobilized in both the nineteenth and the twentieth centuries to protest and change prison conditions, is there so little public concern over prison violence, overcrowding, the long term use of indefinite isolation, and the de jure and de facto erosion of prisoners’ civil rights?
In the course of my work as a historian of American law and society, I have pondered these questions frequently—enough to realize that, as formulated here, they’re in need of considerable refinement. But the history of America’s various modes of legal punishment leads me to suspect that our general failure to recognize certain prison abuses as human rights abuses is largely a consequence of the exceptional and degraded legal and moral status of convicted offenders. If we understand human rights as inalienable rights that flow from the mere fact of being human, it is hard to escape the conclusion that here in the United States prisoners and convicted offenders more generally do not count, at least in the eyes of the law and a vocal minority of opinion-shapers, as fully human. This drastic erosion of prisoners’ status transpired in the last twenty years of the 20th century and is the result of complex social, economic, and political forces. But, as I’ll suggest here, the courts and lawmakers of the nineteenth century helped lay the legal pathway to this dismal state of affairs by reviving and modernizing the early medieval legal fiction of the convict’s civiliter mortuus (civil death).
The article is well worth a read. McLennan is the author of a history of nineteenth-century punishment, The Crisis of Imprisonment, which I also highly recommend to anyone interested in the deep past of the American criminal justice system. A theme of that book is how widespread popular dissent led to the dismantling of systems of imprisonment at several moments in American history.