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.

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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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