Archive for the ‘Reflections’ Category
Berkeley law professor Jonathan Simon thinks so:
[W]e need a commission to investigate for the public record how the state found itself operating prisons that attract words like torture, cruel, inhuman, and degrading punishment. This is not Honduras where poverty, spiraling crime, and corruption are the order of the day, or Mexico, but we had prisons that belong in the same frame as recent news stories about the fire the killed hundreds in an overcrowded and chaotic Honduran prison (Guardian coverage here) and a murderous riot by one prison gang against another in Mexico to cover over an escape of elite gang members abetted by guards (coverage in the Guardian here).
Given the severity of the human rights problem in California’s prisons and its duration for more than two decades, retrospective documentation should lead to prospective preventive techniques. The commission could become a California Committee for the Prevention of Torture, or CAL CPT, modeled on the European CPT; a body of legal, medical, human rights, and criminological expert investigators with the authority to inspect any prison, mental hospital, or indeed any place of confinement, in order to warn state government of the potential for degrading conditions to form and how to prevent it.
The full post and more are at Simon’s always thought-provoking Governing through Crime blog.
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.
Continuing what seems to be this week’s theme of LWOP here at the Prison Law Blog, here’s UCLA law professor Sharon Dolovich:
Of the 2.3 million people currently behind bars in the United States, only 41,000 – a mere 1.7% – are doing LWOP. Based on these numbers, one might well regard LWOP as the anomaly, and certainly not emblematic of the system as a whole. … I argue that it is LWOP that most effectively captures the central motivating aim of the contemporary American carceral system: the permanent exclusion from the shared social space of the people marked as prisoners. This exclusionist system has no real investment in successful reentry. … If this project is to be abandoned and its destructive effects reversed, the implicit assumption that individuals who have been subject to criminal punishment have thereby forfeited their status as fellow citizens and fellow human beings must be confronted and rejected.
That’s from the abstract to Dolovich’s new paper, “Creating the Permanent Prisoner,” available on SSRN. It’s from the compilation Life without Parole: America’s New Death Penalty?, forthcoming from NYU Press.
The record shows that [defendant Tony] Gregg was a classic “utility player” in America’s forty-year “war on drugs”: user, seller, “snitch.” A tenth-grade drop-out (after repeating the second grade and the seventh grade) with four half-siblings, he began to use illegal narcotics in his early teens. For a time, he lived in an abusive family environment; later, he moved between his mother, grandmother, and father, sometimes in Virginia, sometimes in Ohio. As a young man, he attempted suicide more than once (although he described the episodes as mere attempts to “get high”). Throughout his 20s and early 30s, he was in and out of jails and prisons on a regular basis, sometimes for assaultive behavior. …
Understandably, perhaps, to many, Gregg is not a sympathetic figure; they will think: he got what he deserved. To many others, perhaps, matters are not so clear. Indeed, many would say that Tony Gregg seems to be one more of the drug war’s “expendables.” …
This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit. Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison. He is not alone: the United States currently has the highest rate of incarceration in the world. …
The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure.
The opinion can be downloaded here (PDF) and is well worth reading in full.
Wow. Color me bleeding-heart, but I think this piece by Peter Moskos kills it:
My defense of flogging—whipping, caning, lashing, call it what you will—is meant to be provocative, but only because something extreme is needed to shatter the status quo. We are in denial about the brutality of the uniquely American invention of mass incarceration. In 1970, before the war on drugs and a plethora of get-tough laws increased sentence lengths and the number of nonviolent offenders in prison, 338,000 Americans were incarcerated. There was even hope that prisons would simply fade into the dustbin of history. That didn’t happen.
From 1970 to 1990, crime rose while we locked up a million more people. Since then we’ve locked up another million and crime has gone down. In truth there is very little correlation between incarceration and the crime rate. Is there something so special about that second million behind bars? Were they the only ones who were “real criminals”? Did we simply get it wrong with the first 1.3 million we locked up? If so, should we let them out?
America now has more prisoners, 2.3 million, than any other country in the world. Ever. Our rate of incarceration is roughly seven times that of Canada or any Western European country. Stalin, at the height of the Soviet gulag, had fewer prisoners than America does now (although admittedly the chances of living through American incarceration are quite a bit higher). We deem it necessary to incarcerate more of our people—in rate as well as absolute numbers—than the world’s most draconian authoritarian regimes. Think about that. Despite our “land of the free” motto, we have more prisoners than China, and they have a billion more people than we do.
If 2.3-million prisoners doesn’t sound like a lot, let me put this number in perspective. It’s more than the total number of American military personnel—Army, Navy, Air Force, Marines, Coast Guard, Reserves, and National Guard. Even the army of correctional officers needed to guard 2.3-million prisoners outnumbers the U.S. Marines. If we condensed our nationwide penal system into a single city, it would be the fourth-largest city in America, with the population of Baltimore, Boston, and San Francisco combined.
Read the piece in full, and send it to your friends and family.
The judges who wrote the 184-page court order in Coleman/Plata may have hoped they were writing history, but it turns out they were contributing to art, too! The Los Angeles Poverty Department, an arts and activism collective made up largely of homeless people, recently completed an innovative project combining public education, performance art, film, and theatre:
Project events started with a panel discussion about the effects of California’s parole reform on parolees. As we build the performance, State of Incarceration, we performed it in Skid Row, in parolee re-entry programs in the San Fernando Valley and LA and in 5 performance events at the BOX gallery that took place within a wall-to-wall prison bunk-bed installation. In the BOX’s basement we showed images charting the expansion of the prison population and new prison construction in California over the past 3 decades and the 21 year and counting history of the lawsuit challenging the quality of the health services in the state’s over-crowded prisons.
We invited our audience to read one page of the 184-page lawsuit. We’ll continue doing this until all pages are filmed. The resulting 5+ hour film will be part of the project.
The finished performance piece opened in late January at Highways Performance Space in Santa Monica. Unfortunately I didn’t find out about it in time to alert readers — it closed Feb. 5 — but here’s one reviewer’s summary of the experience:
In some shows, one may feel like one is in prison; in this one, that intent is deliberately visceral: Metal bunk beds line the walls and center of the theater and audience members are crammed into the room, often sharing bunk beds with the actors playing the inmates. The directors interspersed disturbing silences between a series of monologues and starkly delivered poems that illustrate the despair and hopelessness of prison life. In one such silence, convicts recline on their beds, and the guards patrol every inch of the room. During this sequence, the charged quiet belies the undercurrents of seething rage, and the piece approaches the claustrophobia, sorrow, and anger of being in prison.
Rowan Williams weighs in on Britain’s debate about inmate voting rights:
If we lose sight of the notion of the prisoner as citizen, any number of things follow from that, and indeed are following from that. … Thus issues around restoration, around responsibility, around developing concepts of empathy and mutuality are all part of what seems to me to be a reasonable working out of what it is to regard the prisoner as a citizen.