Prisoners As Subjects Unworthy Of Moral Concern

The Intercept notes–in an essay by Alice Speri–that ‘deadly heat’ is killing prisoners in US prisons, that state governments would much rather spend money on legal fees than on installing air conditioning. In one egregious instance, Louisiana spent one million on legal fees to avoid spending $225,000 on AC. As the secretary of the Louisiana Department of Public Safety and Corrections Jimmy LeBlanc put it to the Associated Press in June, installing air conditioning at Angola would open a “Pandora’s box.” and that his “biggest concern is the impact on the whole system and the cost.” As George Gale noted in response (in a comment on my Facebook page), “I suspect what he actually means is “The public would crucify us if we air conditioned prisoners!”


Not too long ago. I made the mistake of reading the comments section in an online article about Orange is the New Black. There, many commentators expressed anger and dismay over the treatment of prisoners that was depicted in the show. Unfortunately, their anger and dismay was directed at the coddling that the inmates seemed to receive behind bars: They watch television! They walk around in the prison yard! They get their hair done! They had a store where they could buy stuff! One commentator finally went right ahead and said it “These women have a better life than I do.” There was something pathetic about that claim, something that spoke to just how onerous she imagined her life to be if it could be compared to that of a prisoner locked up behind bars. (This is not to say that many living outside of prison do not have qualitatively worse lives than they would have inside but I do not think this person, with an internet connection and the time to read and comment on an article about a television show, was one of them.)

Somewhere in the retributivist argument that many folks employ, the following premise is smuggled in:

If you commit a crime, and are convicted of doing so, you thereby lose all and claims to any civil, constitutional, and human rights. Indeed, you cease being a human deserving of any sort of considerate treatment. You are, after all, a convicted criminal.

It will be noticed that in this case ‘convicted criminal’ has come to mean ‘degenerate sub-human lacking those vital features which make him or her a worthy subject of moral concern.’ It’s not an eye for a eye but rather body and soul for an eye. (It should be remembered that the ‘eye for an eye’ formulation includes proportionality in its claim.) As a result, it is not enough that prisoners are denied their freedom and choice, restricted to particular spaces, told when to wake up, go to sleep, put the lights out, exercise, served particular food items and not other (with some concessions made for dietary constraints), and subjected to–among many arbitrary exercises of power–violence and sexual assault from guards and other inmates. No matter. They deserve it, they asked for it, they got what was coming, if you can’t do the time don’t do the crime, they should have thought about this before they committed the crime: the list of stern platitudes directed at convicts is never-ending, a grand testimonial to the smugness and complacency and small-mindedness of those of us on the ‘outside’ who have lost our capacity for empathy, who imagine that the strong arm of the law will never be lowered on them, who imagine that when they make a mistake, the benevolence and forgiving that has been so carefully hidden away by the world so that it can better deal with its convicts will suddenly be directed at them. It won’t; to encourage vindictive and cruel retribution directed at others is to set up a store for oneself too.

Orange Is The New Black And The Privatization of Prisons

Spoilers Ahead. 

Orange is The New Black has attracted–not unjustifiedly–some flak for its powerful and painful fourth season: it has been accused of being ‘trauma porn for white people,’ and of having ‘failed the Dominican community.’ Still, the show has provided some powerful drama in those thirteen episodes, largely by throwing off any pretensions that were hoisted on it of being a ‘funny’ or ‘comedic’ look at what happens behind the walls of a modern prison, and by concentrating on those issues that are too often the stuff of contemporary headlines pertaining to mass incarceration: the privatized prison-industrial complex, the brutality of poorly trained prison guards and correctional officers, racism, violence, sexual abuse and assault, criminal activity behind bars, drug abuse, the complicated social dynamics of prisoner groups, prison protests, deaths in custody, and so on. (Orange is the New Black is set in a women’s prison, so these issues receive an interestingly different treatment because of its inclusion–even if incompletely, and often crudely–of the perspectives of lesbians and women of color. Despite its increasingly serious tone. the show retains its witty edge because of its sharp writing and because of the comedic talent of many of its actors.)

In the many indictments the show levels at our society, one stands out pretty clearly: the privatization of prisons, the transformation of incarceration into industrial endeavor. The show’s narrative and rhetorical arc in the third season was radically altered by its choice to concentrate on the privatization of Litchfield, and not coincidentally, that is precisely when the show took on its darker tone. The predominance of the economic bottom line, and the casual cruelty and indifference to human interests it brought in its wake ensured that change pretty quickly. Interestingly enough insofar as any sort of alliance between the various warring factions among the inmates ever emerges, it is in reaction to the lowering of the corporate boom on their heads: if prison administration was uncaring and callous before, then the new dollars-and-cents mentality is even more grim, ever more removed from the realities of their lives, one that demands, finally, even if only temporarily, the putting aside of differences.

As Orange is the New Black makes quite clear in its treatment of the death of Poussey–the show’s most traumatic moment thus far, the one that finally pushed it over the edge, and made clear the it was not in Kansas anymore–an innocent human being died as a result of the decisions made by those, and there were many, who chose to imprison her and her fellow inmates in the way they did. The overcrowding at Litchfield, the use of untrained guards, the tolerance of their brutality, the systematic, cruel, ignorance and indifference of corporate managers; they all applied that fatal pressure to Poussey’s windpipe; she died because a system’s weaknesses became too much for her to bear. As they have for all too many in real life. If Orange is the New Black can help us pay more attention to their fates, and to the actions that are required to ensure they are not repeated, it will have, despite some well-deserved criticism, done its part.

The Least Interesting Character On Orange Is The New Black

That title goes to Piper Chapman. It is not often that the supposedly central character on a show can pull this off, but we have evidence now that such an accomplishment is possible. This is not just because Piper is guilty of being WASP’ily ‘precious’ or ‘special’ or ‘privileged’ in the way that her fellow inmates describe as her as being; neither is it because her on-screen persona can very often be teeth-grindingly irritating; and it certainly is not because she is capable of a great deal of pettiness and petulance. Quite simply, there just isn’t that much there. She doesn’t have great lines, and she has little substance to flesh out the front she puts on. Every appearance of her on screen is guaranteed to suck the life out of the episode; it is with relief that we welcome the show’s many other fascinating characters back on stage. (Taystee for instance.)

Piper’s background–shown in flashback, like that of many other characters on OITB–is not particularly intriguing: she ran drugs, was a small business owner in Brooklyn, once had a girlfriend, got engaged, and then got busted. (So unremarkable has this history been that I cannot even remember if we have been granted access via time travel to her childhood years, exposure to which in the case of the other characters has often been quite illuminating.) Her personal conflicts with her fiancée, Larry Bloom, are mildly diverting, but they do not make us empathize or sympathize; somehow, amazingly enough, we fail to feel the pain of a couple separated by imprisonment. (Indeed, her supporting crew on the ‘outside,’ including Larry and her brother, are far more interesting; the latter, especially, should have a spin-off show of his own.) Her relationship with her former partner in crime and girlfriend, Alex Vause, has its moments, but there again, it is sunk by a certain banality; would we care if they broke up or stayed together or punched each other out in the dining hall? Indeed, the injection of the used panty business and the new romantic interest, Stella Carlin the tattooed Australian felon, in the third season, seem like rather desperate attempts by the show’s writers to spice up not just Piper’s life in prison, but also our interest in her. It is just not clear why we should care about this woman with so many other interesting and intriguing women (and men) around. It’s OK to find a character hateful, or irritating, or offensive; it is fatal to find the character just plain boring.

It is not entirely clear to me how this state of affairs has come about. I have not read Piper Kerman‘s book so I do not know if such a banality is present in the original story that underwrites the show. Still, I can only hope–like some other fans of the show that I know–that when Piper’s sentence runs its term, she will be packed off to Brooklyn, and the show will continue without her.

Mass Incarceration And Teaching Philosophy Of Law

This coming spring semester, as in the just-concluded fall semester, I will be teaching Philosophy of Law. As I get down to thinking about my syllabus, one imperative seems overriding: I must ‘do more’ on mass incarceration (and related topics like the theory of punishment and the death penalty.) No topic seems more important, pressing, and urgent in today’s United States. In the face of the brutal particulars of mass incarceration (and the racism and War on Drugs that animate and sustain it), the highly theoretical particulars of the traditional debates in the philosophy of law–the nature of law according to natural law and positivist theories, legal reasoning, the interpretation of legal texts–seem curiously context-free, unanchored to empirical particulars pertaining to the lives of actual legal subjects. (To be sure, legal realist, critical legal studies, critical race, and feminist legal theories do animate and make concrete these discussions considerably; they also inject a much-needed dose of historical and political perspective.)

With these considerations in mind, a tentative outline for the upcoming semester’s syllabus suggests itself to me: begin with Lon Fuller‘s The Case of the Speluncean Explorers, using it to animate–or as my friend Cathy Kemp likes to say, ‘ignite’–discussions on natural law, positivism, and statutory interpretation; move on to Justice Oliver Wendell Holmes‘ classic The Path of the Law; follow this up with H. L. A. Hart‘s The Concept of Law (almost certainly not in its entirety), and then, switching gears, move to Michelle Alexander‘s The New Jim Crow and  Albert CamusReflections on the Guillotine. (As noted, this is an outline; I will supplement this basic structure with some selected case studies that will help illustrate the central issues at play in reasoning by analogy and precedent, and the dominant theories of constitutional interpretation.)

Needless to say, this is a pretty idiosyncratic syllabus, and I might be accused by many philosophers of law of leaving uncovered a host of topics that have traditionally been of interest to that demographic: rights, justice and equality, responsibility, legal procedure and evidence, torts, property, contracts etc. My syllabus shows a clear bias toward public law and ignores private law altogether; there is no critical legal studies; some traditional philosophers will be appalled to see Camus in this reading list; and so on. (The alert reader will have noticed however, that the first four topics on that laundry list cannot but occur, implicitly or explicitly, in a discussion of mass incarceration like the one undertaken in The New Jim Crow.)

I remain resolutely unapologetic about these omissions though. My syllabus will strike a reasonable balance between the ‘theoretical’ and the ‘applied’, and more to the point, it will bring into my classroom, that moral, political, and legal atrocity–mass incarceration–that is not only America’s greatest modern embarrassment but also, in some ways, the most relevant topic of all as far as my students’ lives are concerned.  I’d consider this the strongest reason of all in favor of its displacement of traditional material.

Oscar López Rivera and the Cabanillas

My essay on the Puerto Rican political prisoner Oscar López Rivera “Oscar López Rivera and the Cabanillas” is out in the Los Angeles Review of Books. Please read and share. Oscar’s case–and the miscarriage of justice at the heart of it–deserves to be known and talked about far more widely than it is now.  I owe many thanks to Fernando Cabanillas and Jan Susler of the People’s Law Office for their help in writing this essay.

Vincent Simmons: ‘The Innocent Burn When Falsely Accused’

A few decades ago, while watching a Bollywood potboiler at home with my parents, I saw a central character react sharply to a concocted accusation–perhaps of theft–by the movie’s villain, out to frame him and send him to jail so as to clear the way for his other nefarious plots. As our hero responded to this charge with loud, anguished protestations, his body shook; he seemed to be possessed by a demon of some kind. Unable to take my eyes off this acute reaction, I asked my mother, “Why is he so upset?” My mother replied briefly, “The innocent burn when falsely accused.” (Something is lost in the translation here.) Her language seemed apt; this man was aflame, suffering the agonies of being burned on the stake.

A few years later, in boarding school, a slimy weasel lodged a false complaint against me with the school prefects. Apparently, I had abused and hit him. I was lucky; the prefect who received the complaint let me off with a warning. As I stood there receiving his sonorous lecture about the need to behave better, to restrain myself and show some manners, I seethed with anger. What if I had actually been punished–perhaps by a caning or a punishment drill, or even worse, by suspension or expulsion? (Bullying, if found to be occurring, was a severely punishable offense.) I dared not even imagine what my response–helpless in the face of such injustice–would have been.

Last week, as I watched The Farm: Angola, USA, Jonathan Stack, Liz Garbus, and Wilbert Rideau‘s 1998 award-winning documentary set in the infamous maximum security Louisiana State Penitentiary, and discovered the story of Vincent Simmons, still serving a life sentence–hundred years–for the attempted aggravated rapes of a pair of teenaged twins in 1977, I remembered my mother’s words all over again.

Simmons has been burning for thirty-eight years now. He was railroaded into jail, and there he stays. No physical evidence linking him to the rapes was ever prosecuted by the prosecution; his alibis were discounted; his counsel provided him inadequate legal representation by failing to question state witnesses about their testimony; the victims professed to not knowing the identity of their attacker because “all niggers look alike”; he was identified and picked out of a line-up in which he was the only handcuffed person; it took sixteen years for him to be granted access to “the evidence file pertaining to his case, including police reports, arrest reports, victims’ statements, trial transcripts, the medical examiner’s report”; in The Farm, a parole board, which reviewed his case in 1998, summarily dismisses the compelling evidence he presents to them without so much as a discussion of the merits of his appeal; the legal and moral atrocities go on and on.

Many Americans remain unaware–blissfully so–of the catastrophe that is our penal system. The indigent innocent go to jail all the time, there to face further brutalization and diminishment of their life’s prospects. The book is too often thrown at them; that done, they are left to rot behind the walls. Racism, the war on drugs, and the vicious retributive streak that informs our notions of punishment have resulted in a collective perversion of ‘innocent until proven guilty.’

The horror of what is happening today, under our noses, should keep us awake at night. It should induce nightmares, visions of innocence falsely condemned.

Note: A proper review of The Farm will follow anon.

‘A Manual For The Police On How To Conduct Beatings’

Leonard Strickland was beaten to death; in jail, by prison guards. Those who did so, and those who supervised them, were secure in the knowledge that very little would be, and could be, done to bring them to justice. History and the law is on their side.

In 1992, in one of Clarence Thomas‘ earliest cases on the Supreme Court, Hudson v. McMillian, Thomas found himself on the losing side in a 7-2 decision. Keith Hudson, an inmate who had suffered a vicious beating at Angola Prison, had filed suit in a federal court, claiming violation of his Eighth Amendment rights. He won $800 in damages as the judge found he had been beaten “maliciously, unnecessarily, and wantonly.” On appeal, the case had made its way to the Supreme Court, where the decision was “cautiously” affirmed with only Antonin Scalia and Thomas dissenting.  Justice Sandra Day O’Connor distinguished this case from “those cases where deliberate indifference to a prisoner’s health is not a violation unless there is serious injury.” The relevant test was “whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” (Note the ‘good faith’ exception.)

Thomas, in his dissent, claimed that “a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not ‘cruel and unusual punishment’….The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.” Thomas based his decision on: the culture and values of the eighteenth century, the history of the cruel and unusual punishment clause, the Constitutional Convention and state ratifying convention debates, and of course, the text of the Constitution. He noted the Supreme Court had, for a very long period in American history, rejected all “conditions of complaint ” claims and not held the cruel and unusual punishment clause relevant to prison conditions. He concluded that “Today’s expansion of the Cruel and Unusual Punishment Clause beyond all bounds of history and precedent is…yet another manifestation of the pervasive view that the Federal Constitution must address all ills in our society….[including] any hardship that might befall a prisoner during incarceration.” Thomas went on to suggest that older cases affirming prisoners’ claims of beatings and torture should be overturned.

Scalia and Thomas lost, but they set the stage for what followed.

In 1996, thanks to extensive lobbying by William Rehnquist, the Supreme Court Chief Justice who, though impatient with prisoners rights claims, for tactical reasons had earlier joined the Hudson v. McMillian majority, Congress passed the Prison Litigation Reform Act, stating prisoners cannot recover damages under the cruel and Unusual Punishment Clause if there is “no permanent damage.” Prisoners cannot recover for pain and suffering even if the beating is “long, brutal, malicious, and wanton.” The Prison Litigation Reform Act was, as Martin Garbus claims, a “a manual for the police on how to conduct beatings and not get sued.”

The immorality and brutality of our prison system is scaffolded by our nation’s laws.

Note: This post is cribbed from Martin Garbus’ Courting Disaster: The Supreme Court and the Unmaking of American Law, Henry Holt, New York, 2002, pp. 74-75.