Ending the injustice of mass incarceration.

Simon, Jonathan

ONE OF THE MOST DISTINCTIVE PLEASURES AVAILABLE TO AUTHORS IS BECOMING aware that one's own thoughts, objectified as words, entered into the stream of others' thoughts and produced more words. The pleasure is especially deep when those others are producers of thoughts and words that have already influenced one's own. That is true in this case with each of the participants to this symposium. My book was written for a distinctive end of its own, helping to end the injustice of mass incarceration in our time, and I am deeply grateful to these colleagues because I believe their insights will improve the ability of the book to contribute to that end, which I know each of them shares and has made important contributions toward. Here I offer a few brief responses to these very helpful and corrective comments.

Mona Lynch calls me out for my optimism, which she calls refreshing but unconvincing. Lynch is one of the foremost analysts of mass incarceration, having explored it in Arizona in her superb book. Sunbelt Justice (2009). For Professor Lynch, my premise that Brown v. Plata--and the disgrace of California's descent into torture and degrading treatment of prisoners--can lead to a "dignity cascade" is questionable. A student of psychology. Lynch views degradation as hardwired into the logics of modern incarceration and especially into the era of mass incarceration in Arizona. Prisons were always degrading, but modern correctionalism, the "tradition" concerned with rehabilitation of prisoners and improvement of prison conditions and individual treatments (of which 1 will say more shortly) was intended to mitigate the most degrading features of incarceration--and to some extent it did. The Stanford Prison Experiment to which Professor Lynch refers was designed to test the results of incarceration without any of the features of modern correctionalism (training, rehabilitation, oversight). In that sense it may have been a flawed experiment for its lime (its principal investigators were hardly experts in penology, but some of the students became such, e.g., Craig Haney, Professor Lynch's teacher and coauthor), but it brilliantly anticipated the logics of mass incarceration that were to come.

Perhaps "dignity cascade" suggests something more rapid and dramatic than Brown v. Plata is likely to lead to. We know that the evidence that institutions have failed to respect human dignity can sometimes lead to an enlarged sensibility as to what humanity and dignity require. Details of suffering on the battlefields of the European civil wars of the 1860s led to the formation of the International Red Cross and the first piece of positive human rights law in history, the first Geneva Convention, within a few years. Only three years separate the closing of Auschwitz from the Universal Declaration of Human Rights (although we are still struggling to make its promises a reality even among the signatory nations). Journalistic and literary depictions of wasted lives locked inside of cruel and degrading public mental hospitals in the 1950s had pretty much eliminated mass psychiatric hospitalization by the 1970s. Sadly, despite the powerful documentation of torture and suffering in California's prisons, few people, even in California, seem aware of them. Part of the problem is no doubt that to many people, the crimes committed by prisoners outweigh or even justify their degrading treatment in prison. Part of the problem is that mass incarceration has been defined in large part in quantitative and demographic terms, rather than in qualitative terms. In any event, my own experience giving public talks about California prisons suggests that when people understand this qualitative reality, they reject it.

Leonidas Cheliotis is skeptical that dignity as a concept can do the sustained work necessary to reverse mass incarceration. As noted, crime is a powerful moral determinant that undercuts empathy and even the acknowledgment of the essential dignity of the people who have been convicted. Even now that the journalists' interest in mass incarceration is growing, we are constantly confronted with reporting that refers to "criminals" and "offenders" and which assumes that the only relevant question about prisoners is whether and when they will offend again.

I disagree in part with Professor Cheliotis's view that Americans are already well aware of the degrading conditions in prisons. Much of the popular culture representations of prisons and prisoners depict dangerous and violent-looking men moving through a grim environment, not older and sick prisoners suffering in conditions of humanitarian disaster, such as existed in California and still does. That is why the record in this case is so important. If Americans view prison as a kind of recreational version of hell inhabited by people who obviously prefer to dominate others over building a community based on mutual respect and regard, they are unlikely to sympathize with prisoners, if not to prevent less serious criminals from being exposed to those norms (thus the popularity of ending incarceration for "non-violent drug offenders"). A focus on violence, which is the main way popular culture represents prisons and prisoners, is unlikely to build sympathy or concern for human dignity. Thinking of prisoners as people abandoned to the unremitting torture of cancer or schizophrenia who are denied widely available medical treatment calls forth a very different reaction. Pity so few people are aware of it.

Professor Cheliotis is clearly correct that judges, the legal actors whose authority is generally required for imprisonment (the large exception being parole violations, which are often handled administratively), deserve more criticism for their role in facilitating mass incarceration. Indeed, in nearly half of US states and the federal system, where prisons are overcrowded, lawyers should be asking judges to refuse to sentence people to prisons where there is a real risk of torture or degrading treatment. The Constitution trumps state and federal sentencing statutes. Torture is itself a federal crime. Thus even where mandatory minimums require imprisonment, the Constitution can be called upon to deny it; but only if we raise these claims. They may not seem realistic, but demands for justice rarely are at first.

Benjamin Fleury-Steiner is my role model for venturing into what I would call normative sociological jurisprudence. His 2008 book with Carla Crowder, Dying Inside: The HIV/AIDS Ward at Limestone Prison, was the first contemporary work of penology I encountered that called my attention to the qualitative dimensions of mass incarceration, and especially to the danger to human dignity posed by the toxic combination of incarceration and chronic illness. I very much appreciate his invoking of Stanley Cohen's classic States of Denial (2001), which is--I am embarrassed to say--uncited in my book, but clearly part of its genealogy. I completely agree with Professor Fleury-Steiner that we can gain insight by seeing today's human rights-based approach to prison reform as building on the aspiration of reformers as varied as Chief Justice Earl Warren, whose 1958 Trop v. Dulles (356 U.S. 86) plurality opinion was the first to suggest that dignity was a key value behind the Eighth Amendment ban on cruel and unusual punishment; and Oakland's Black Panther Party for Self Defense, whose urgent effort to protect Black lives from state violence was the predecessor to the contemporary Black Lives Matter movement.

Rebecca McLennan raises some very important criticisms about my use of the concept of an American correctional tradition. Professor McLennan correctly discerns my intent to achieve rhetorical high ground against mass incarceration by lambasting it not only from the direction of prisoners and their rights, but also from the direction of penology's own better aspirations. The author of the definitive study of the emergence of the American prison between the Jacksonian era and World War II, Professor McLennan has persuasively argued that the idea of a distinctive difference between the northern penitentiary project and the southern tradition of prison as slavery is largely illusory. Reform always trailed behind not simply administrative convenience, but also profit-making exploitation of labor. Professor McLennan also usefully insists that any effort to evaluate the performance of prison systems over time attend to the differences between philosophy, daily practice, and administrative doctrine. My invocation of a correctional tradition is decidedly lacking in this kind of analytic precision.

In part I want to plead guilty to the charge of rhetorical overreach in my eagerness to damn mass incarceration. However, there is basis for my conviction that an American correctional tradition exists that may provide an important resource as we attempt to reconstruct American corrections after mass incarceration. In retrospect I should have been clearer (in my own mind as well as my text) that the tradition I referred to was far more recent than I suggested. This tradition is not rooted in the aspirations, real or imaginary, of the first penitentiaries, or even of the late nineteenth-century movement to develop a scientific rehabilitative penology; rather, it emerged in the judicial reform movement that unfolded in the 1960s through the 1980s, which Malcolm Feeley and Edward Rubin analyzed so deeply in their book Judicial Policy Making and the Modern State (2000). It was in these decades that courts created a modern correctional tradition by drawing on the rehabilitative philosophy (in McLennan's helpful terms) of most American states at the time, and the administrative doctrines (again to use her terms) of the most progressive ones (the federal system and, ironically, California among others), to impose new demands on the daily practices and conditions of American prisons.

Tony Platt, as usual, goes to the heart of the matter in identifying that the dignity-based path 1 discuss will not progress far absent a true invention, and revival, of social democratic liberalism. Although no one would mistake 2015 for 1965, or Obamacare's second precarious survival at the hands of the conservative-dominated Supreme Court for Medicaid and the Voting Rights Act (both of which were enacted into law that year), there are in my view real signs of a comeback for social democracy within the United States. In addition to the largest expansion of welfarist commitments in a couple of generations (which the Affordable Care Act represents), Obama's late turn to criticizing mass incarceration itself opens the door to social policies that address the harms of poverty directly.

Professor Platt also highlights the continuing relevance of race and racism in determining mass incarceration and in limiting reforms that appeal to humanity and dignity. The problematic relationship of the United States to dignity is based in large part on the racially defined system of status degradation associated with slavery and, later, Jim Crow. Whereas Europe marked status in terms of the privileges belonging to the nobles (many of which were dignitary in the sense that we use the term today), the United States eliminated aristocracy, preserving only the downward status departure reserved for slaves (as well as Native Americans and many non-English immigrants).

There is no doubt that my book fails to sufficiently address this issue. I made an analytic mistake in hewing so closely to the case law itself, which almost completely fails to mention race in any respect (focusing instead on humanity in the form of mental illness and physical medical suffering). But that elision is itself an important hint about the opportunities and dangers we now face. The racism of the current system is now well acknowledged. Reforms based on this have been modest but real (consider the reduction in the crack/powder cocaine weight thresholds for mandatory minimum prison sentences from 100:1 to 18:1), but they may have gone as far as they can. Arguments based on dignity can disrupt the presumptions that a racially coded fear of crime has normalized. At the same time, gains won on the basis of arguments for humanity and dignity are likely to weaken as they are applied to individuals and groups to whom society has yet to acknowledge full human dignity and equal status. We need a dignity and racial/class justice movement that goes back and forth between defining the minimum features of a human existence for all members of contemporary society and highlighting the structural denial of those features to those bearing stigmatized identities.

As Professor Platt has himself taught me, history matters, and we need to figure out where we are in the present conjuncture. The last wave of prisoner activism and liberal prison reform politics in the late 1960s and 1970s was challenged from the left by a radical prison movement that sought to define the correctional paradigm of that era as a tool of class- and race-based domination, and from the right as a relinquishment of a crucial component of public order. The disaster of mass incarceration that followed was not the product of either choice, but soon rendered both superfluous. At the current moment, prison protests, such as the remarkable hunger strikes that in 2013 mobilized thousands within the California prison system in protest of the state's reliance on prolonged and indefinite use of extreme isolation incarceration (23-hour-a-day lockdown with no programming), reflect the prisoners' clear strategy to emphasize their own humanity and their need for respect of their essential human dignity over their political agency or their potential as a vanguard for radical political change. My inclination is to believe they have identified the right way forward.

REFERENCES

Cohen, Stanley 2001 States of Denial: Knowing about Atrocities and Suffering. Cambridge, UK: Polity Press.

Feeley, Malcolm M. and Edward L, Rubin 2000 Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons. Cambridge. UK: Cambridge University Press.

Fleury-Steiner, Ben and Carla Crowder 2008 Dying Inside: The HIV/AIDS Ward at Limestone Prison. Ann Arbor: University of Michigan Press.

Lynch, Mona 2009 Sunbelt Justice: Arizona and the Transformation of American Punishment. Stanford, CA: Stanford University Press.

Jonathan Simon *

* JONATHAN SIMON (email: [email protected]) is Adrian A. Kragen Professor of Law and Faculty Director of the Center for the Study of Law & Society, UC Berkeley. His scholarship concerns the role of crime and criminal justice in governing contemporary societies. His past work includes Poor Discipline: Parole and the Social Control of the Underclass (1993) and Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (2007). His most recent books are The Sage Handbook of Punishment and Society (2013) (edited with Richard Sparks) and Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America (2014).