Archive for the ‘Historical Notes’ Category
This book uses the landmark case Jones v. North Carolina Prisoners’ Labor Union to examine the strategies of prison inmates using race and radicalism to inspire the formation of an inmate labor union. It thus rekindles the debate over the triumphs and troubles associated with the use of Black Power as a platform for influencing legal policy and effecting change for inmates. While the ideology of the prison rights movement was complex, it rested on the underlying principle that the right to organize, and engage in political dissidence, was not only a First Amendment right guaranteed to free blacks, but one that should be explicitly guaranteed to captive blacks—a point too often overlooked in previous analyses. Ultimately, this seminal case study not only illuminates the history of Black Power but that of the broader prisoners’ rights movement as well.
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.
Jim Campbell had a fascinating story in the Tulsa World this week about a set of bipartisan legislative proposals in the 1990s that could have brought Oklahoma’s prison system back from the “tough-on-crime” brink — only to meet with resistance:
Richard Kirby, [Gov. Frank] Keating’s legal adviser and delegate to the legislative panel, said the governor initially “had a lot of hope for it.”
“Then he was beginning to hear concerns from the law enforcement community about certain aspects of it,” said Kirby, now an Oklahoma County associate district judge. “One thing I heard was that the matrix required nine felony convictions before any time in prison. I think the matrix was a problem for a lot of people. The DAs were not brought in for the first part.”
The article is well worth reading in full — some of the story will be familiar (like high-profile crimes spurring bad policy reactions), and of course you’ll have to read between the lines of the quotes offered by self-serving politicians, but Campbell provides a detailed account of the interplay between federal judicial oversight, legislative incentives, the district attorneys’ lobby, and other political factors that make Oklahoma an illuminating case study. The piece is part of the ongoing Oklahoma Watch project on the state’s highest-in-the-nation female incarceration rate, which you can learn more about here.
UPDATE: Aaand it looks like this history could be repeating itself in Indiana.
Heather Schoenfeld of Northwestern Law has a new article out entitled “Mass Incarceration and the Paradox of Prison Conditions Litigation” (h/t: Legal History Blog). From the abstract:
In this article I examine how prison conditions litigation in the 1970s, as an outgrowth of the civil rights movement, inadvertently contributed to the rise of mass incarceration in the United States. Using Florida as a case study, I detail how prison conditions litigation that aimed to reduce incarceration was translated in the political arena as a court order to build prisons. … The findings suggest how “successful” court challenges for institutional change can have long-term outcomes that are contrary to social justice goals. The paradox of prison litigation is especially compelling because inmates’ lawyers were specifically concerned about racial injustice, yet mass incarceration is arguably the greatest obstacle to racial equality in the twenty-first century.
If you’re interested in the deep past of America’s carceral state, and/or American imperial history, then you may want to take a look at Colonial Crucible: Empire in the Making of the Modern American State, a 2009 edited volume put together by Alfred McCoy and Francisco Scarano and published by the University of Wisconsin Press. (At the moment, I happen to be making my way through McCoy’s important — and dense — other recent book, Policing America’s Empire: The United States, the Philippines, and the Rise of the Surveillance State, also out from Wisconsin in 2009.)
Colonial Crucible is a series of essays about ways in which the United States’ Pacific and Caribbean empire shaped U.S. policy both abroad and at home. In the publisher’s words,
the essays in this volume show how the challenge of ruling such far-flung territories strained the U.S. state to its limits, creating both the need and the opportunity for bold social experiments not yet possible within the United States itself. Plunging Washington’s rudimentary bureaucracy into the white heat of nationalist revolution and imperial rivalry, colonialism was a crucible of change in American statecraft. From an expansion of the federal government to the creation of agile public-private networks for more effective global governance, U.S. empire produced far-reaching innovations.
Of particular interest to readers of this blog might be Part 2, “Police, Prisons, and Law Enforcement,” which includes essays on American penal practices in colonial Puerto Rico, the prohibition of opium in the Philippines, policing in the Philippines, and, again in the Philippines, the Iwahig Penal Colony, opened in 1904 to alleviate overcrowding in Manila’s central penitentiary.
Craig Malisow of the Houston Press offers an interesting historical perspective on Texas’s turn to private prisons:
In 1978, Judge William Wayne Justice of the Eastern District of Texas presided over a class action lawsuit filed on behalf of all Texas prisoners against the Texas Department of Corrections (as it was then known). Two years later, Justice ruled that TDC violated prisoners’ constitutional rights in six areas. The department and the prisoners entered a consent decree regarding the necessary improvements.
The changes were slow to come, a problem exacerbated by the rapidly increasing number of inmates. “By the mid-1980s, Judge Justice had become so impatient with the pace at which the state was changing its prison system that he demanded that the state pay a daily fine in excess of $800,000 if it did not improve its efforts to comply with the mandates of the decision,” according to the Abt report.
Freaked out by the potential financial hemorrhage, lawmakers in 1987 passed the first bit of legislation that would allow the TDC — rechristened the Texas Department of Criminal Justice in 1989 — the ability to contract with private vendors for the housing of prisoners, parolees and juvenile offenders.
To follow all things Texas criminal justice, bookmark Grits for Breakfast, and if you’re interested in private prisons specifically, do the same with Texas Prison Bid’ness. I don’t write as much about Texas in this space as I do about other big states — partly because I happen to live in California, but mainly because Texas prison/jail issues are covered so much more knowledgeably and comprehensively over at Grits.