American Exceptionalism, Crime-and-Punishment Edition

It is part of human nature to punish, and often cruelly so, but a provocative new book persuasively explains why American punishments remain so relentlessly harsh even in the 21st Century.
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On Capitol Hill Tuesday the Senate Judiciary Committee, Senator Richard Durbin (D-Ill.) presiding, will hold its second hearing in eight months on the topic of solitary confinement. Two simple facts about it tell you what you need to know about how far the issue has come in the past few years. First, the title of the proceedings is "Reassessing Solitary Confinement II: The Human Rights, Fiscal and Public Safety Consequences." Second, public interest in the hearing was so great that the venue for it had to be changed to a bigger room.

The hearing in Washington comes one week after New York state agreed under pressure from civil rights litigators to revamp policies and practices employing solitary confinement against juveniles. It comes one week after The New York Times published a remarkable op-ed piece from one of Tuesday's witnesses, Colorado Department of Corrections chief Rick Raemisch, who spent 20 hours in solitary in late January to try to better understand its terrible toll upon the inmates under his control. (See The Atlantic's coverage of that here.)

Durbin and company (the Bureau of Prisons will be represented by its director, Charles Samuels, whose federal prisons are among the cruelest) will gather one week after the Smithsonian Magazine published a piece titled "The Science of Solitary Confinement." It is indisputable, the scientists now say, that putting people into prolonged isolation jeopardizes their ability to ever assimilate back into society once they are released." We also learn from this piece, sadly, that "no U.S. prison is willing to allow its otherwise isolated prisoners to take part in research."

And the Senate will consider solitary confinement one month after the largest prison guard union in Texas called for the curtailment of the use of solitary on the state's death row. Let me say that again: Prison guards in Texas, the world's nation's epicenter of capital punishment, have come to believe that isolating prisoners in this fashion is self-defeating. As the title of the Congressional hearing suggests, there is today, indeed, a great deal of "reassessment" of solitary confinement not just in moral terms but in practical, political, economic and legal ones as well.

Something clearly is happening here and it's not just based upon some slight uptick in public acknowledgment of the immorality of confining fellow human beings to such cruelty no matter what their crimes. There is movement here because there is growing evidence that the inhumane treatment of prisoners is neither safe nor efficient. There is movement here because there is now a strong economic case for prison reform. There is movement, in other words, even though there still is an overwhelming lack of empathy toward the punished.

But to understand precisely what is happening, and where this new reformist sentiment might lead, it's important to understand how deep is the American penchant for punishment—and especially for cruel punishment. It is important to appreciate how conservative an industry the corrections industry is, how much institutional and emotional inertia exists blocking reform to it, and how much lobbying power and money exists to keep people in prison. And it is important to know how stacked the law is against the inmates themselves.

Although you likely won't hear much about it Tuesday at the Senate hearing, the truth is that the abuse of solitary confinement is only one of many intractable problems that exist within our prisons. Lucky for us, at this potential hinge of history, with hearts and minds seemingly open for the first time in a generation to new ideas about crime and punishment, comes a book that offers crucial context and perspective about the history and meaning of punishment in America. It is the right book at the right time.

Inferno, An Anatomy of American Punishment by Robert A. Ferguson, a professor law and letters at Columbia University, will be published next week by Harvard University Press, and if I had won the $400 million Powerball lottery last week I swear I would have ordered a copy for every member of Congress, every judge in America, every prosecutor, and every state prison official and lawmaker who controls the life of even one of the millions of inmates who exist today, many in inhumane and deplorable conditions, in our nation's prisons.

The book is potentially transformative not just because it offers policy makers some solutions to the litany of problems they face as they seek ways to reform our broken penal systems. It is transcendent because it posits that America needs a fundamentally revised understanding of the concept of punishment itself if it is to save its soul in these prisons. Why, Ferguson asks earnestly, "does the average American citizen show little concern about prison systems that are harsher in practice than those in any but totalitarian countries?" Why, indeed?

This book forces prison officials and lawmakers to look inward and see within themselves the dark, unremitting reasons why things have gotten as bad as they have inside our prisons and jails. It says squarely to these political and legal and community leaders (and by extension to their constituents): in seeking to bring retributive justice to bear, in seeking to diminish the prisoner, you have also diminished yourself in ways you are unable or unwilling to admit. Even today, with the whiff of reform in the air, this is a brave and honest message.

So is this one: "Prisoners in this country have been put away, silenced, beaten, sadistically tormented, and most of all forgotten--frequently enough for their entire lives. They have been relegated to conditions and circumstances and physical degradation that shame us as well as them and that no one wants to recognize even though the failure in recognition defines a part of us. No human being deserves that much punishment." This is all true, Ferguson writes, of self-defeating prisons that "now create more criminals than they reform."

Here then is Ferguson, early in the book, addressing the idea of the "slippery slope of retributive thinking" with a passage that ought to be chilling (and familiar) to anyone who follows criminal justice. America doesn't just punish its criminals. It demonizes them. It turns them from men into monsters so that it then may feel justified in treating them so. We see it on our airwaves. We read it online. We hear it from elected officials, and from the police, and it's all sanctified by our courts of law. This passage struck me square:

The transitions from "because your act and your mental state at the time were blameworthy, you deserve punishment" to "you have a vicious character" to "you have a hardened, abandoned and malignant heart" to "you are evil and rotten to the core" to "you are scum" to "you deserve whatever cruel indignity I choose to inflict on you" is, of course, not a logical transition. No single step logically follows from its predecessor. I fear, however, that the transition is psychologically a rather common and in some ways compelling one, one that ultimately may tempt us to endorse cruelty and inhumanity" (emphasis in original).

As a matter of law and politics, Ferguson asserts, the concept of retribution  clearly has won in America. But what a terrible price to pay for such victory. With a few notable recent exceptions-- including New York's brave new foray into education as a defense against recidivism-- we are a nation that seeks to punish, not rehabilitate, our prisoners. In this respect we have gone back in time, back to a dark age in our penological past, back to where in the 21st Century we justify locking away a mentally ill teenager in solitary for 17 years.

So where do we go from here?

Professor Ferguson isn't just a law professor but a literary scholar and his use of literary references in Infernoreminiscent of The Atlantic's own Garrett Epps in his work, is profoundly helpful. The arc of the moral universe may be long, as Martin Luther King Jr. said, and it may bend toward justice, but many great works of Western literature have focused instead upon the most heartbreaking components of crime and punishment. These works also help us understand how America came to be where it is today in the treatment of its prisoners.

Aristotle, Bentham, Calvin, Foucault, Hobbes, Kant, Locke, Mill, Nietzsche, and Rawls all make cameo appearances in Inferno and Ferguson's use of them reminds us of how old these problems are and for how many centuries so many brilliant men and women have argued over them. But in the end all of the high literature, and all of the new-found insight about the scope of the problem, still leaves us all wanting to know how we can begin to fix it. Ferguson nudges us in a direction even as he suggests a stiff wind in our faces as we set off.

The essence of Ferguson's proposal, what he wants to see done differently, is that "the life of the recipient of punishment must continue to be worth living." Here is what that means to him: "It stipulates the avoidance of unnecessary pain and degradation in the name of human understanding. It tells everyone that what is held in prison is a person ... The addition asks for a more basic level of recognition: that of a human bond between the inherently destructive and hostile one-sided vigilance of guards guarding the guarded."

And here is what Ferguson believes such a concept would mean for inmates. First, he writes, it would represent "the need to retain some idea of self, and from it some small but defined area of self-control; second, the desire for productivity in some form; and third, the prospect of continuing growth. The most abominable phrase in the popular language of punishment," Ferguson writes, "is 'Let 'em rot!'... The idea behind the phrase takes away the very nature of existence as intelligence has allowed anyone to define it and want it."

So there "must be an incentive system with rewards that encourage productive behavior" in prisons, Ferguson proposes, there must be reforms to the parole process, and there must be a deal more education and training for correctional officers. And of course there must be a shift away from retributive justice toward rehabilitation and restoration. Each of these suggestions is perfectly reasonable. Each would be a step toward redeeming America's prisons. And were each made even five years ago the response in Washington would be the sound of crickets.

But that was then and this is now. At Tuesday's hearing don't just listen to the words the witnesses speak from their prepared remarks. Don't just listen to the speeches the Democrats make. Listen to what the Republican senators-- those that attend the hearing, anyway-- ask of the witnesses. Listen to what the GOP otherwise says about the need to reform solitary confinement. Sentencing reform today has bipartisan support. But such support has not yet materialized when it comes to prison reforms that cut to the core of the problem.

Postscript

Over the weekend, I asked Professor Ferguson to help me understand, again,  what accounts for the degree of passion so many Americans express when they justify or defend policies like solitary confinement or the abuse of mentally ill prisoners—and also why there is so much official denial about the nature and scope of the problem today. "We do not believe that the current carceral system is broken," he wrote in his book, "because we do not want to think about much it violates the basic principles that supposedly define us as a culture."

On Saturday, via email, Ferguson was just as direct:

Cruelty is an instinctual part of us, and we have to learn not to inflict it. Otherwise we will. Any crowded playground will demonstrate the truth of this proposition. In a corollary, punishment is pleasure or at least a satisfaction in a punisher. It follows that all punishment regimes tend toward greater severity unless there are very strong institutional safeguards against it.

I have covered these "institutional safeguards"—our nation's courts—for the past 17 years and it is manifestly true that our judges have consistently failed to stop even the worst excesses of punishment in our prisons. The worst aspect of this failure isn't just that it is happening—that officials who abuse and neglect inmates aren't immediately stopped or punished. But rather that it is happening because judges hide like cowards behind procedural, technical barriers to justice. As a matter of law, of law handed down by judges and legislators, it is virtually impossible to get a prisoners' rights case before a jury.

This cynical approach to a rule of law is nothing Senator Durbin can remedy with a hearing. Restoring spine to America's "institutional safeguards" ultimately has to come from the United States Supreme Court, from the justices themselves, who have for the past generation countenanced one Eighth Amendment violation after another against prisoners in the name of federalism or some other hoary measure of respect for legislative fiat. With one decision, the Supreme Court can send a ripple of hope to abused and neglected inmates. Don't hold your breath.

Don't hold your breath on fundamental reform also in part because of the racial implications of the problem. "Penal theory and empirical evidence also demonstrate that it is easier to relegate someone to such a secular hell when that person appears to be different from you," Ferguson writes in his book. This sad fact doesn't just help account for racial disparities in sentencing or in drug arrests but also in the lack of political empathy for inmates once they arrive in jail. Anyone else remember Karla Faye Tucker?

Ferguson also over the weekend offered this additional perspective on the news of the day as it relates to his book. The hearings and smart new reform laws now wending their way through Congress treat the symptom but not the underlying disease, he wants you to know. "Current reform efforts to restrict solitary confinement and to reduce drug law penalties are laudable initiatives," he told me, "but they are not going to solve the larger problem:

In the scale of things and in the structure of our current punishment regimes they are drops in a very large bucket and the bucket has a hole in the bottom of it. That hole is the overly retributive context of legal punishment in America. 

This mirrors the pessimism in Ferguson's book. Is there a constituency more forlorn in America than convicted criminals? No. Is that going to change anytime soon? Don't bet on it. "Most of the [prison] problems that the United States faces today are solvable," he writes, "but they are not solved because its citizens do not care enough about the collectivity to act, and the greatest negative symbol of that indifference is the forgotten inmate who is treated worse than anyone else and certainly worse than anyone should tolerate."

So it is encouraging to see this indifference transformed, even for just a few hours, on Capitol Hill. It is encouraging to see lawmakers seeking to lead here instead of waiting for some measure of public support that never is going to come. But these hearings will have to transform themselves into laws, and those laws will have to transform themselves into meaningful remedies for inmates, for the change to come. The inferno is here. It exists everywhere. It burns all of us. And if we are to extinguish it we first have to admit that we caused it.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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