On Bad Memories And Moving On

A few weeks ago, while stumbling around on Facebook, I found an old ‘acquaintance’ of mine: a man who, over thirty years ago, went to the same boarding school as I did. I poked around further; his page was not guarded by his privacy settings from snoops like me. On it, I found a group photograph taken in my boarding school days: a dozen or so familiar faces stared back at me. I hadn’t seen them in thirty-five years. I poked a bit further, as I clicked on their tagged faces in the photographs, and visited their friends’ lists. On one of them, I found a Facebook profile of a ‘senior,’ someone who used to be a member of the class that had supplied the prefects for my last year in boarding school. (I left my boarding school after the tenth grade, after two short years there; this gentleman was the member of the graduating class that year.) On his page, I found photographs of a class reunion, conducted on the campus of my old boarding school. There they were, the members of that graduating class, the ‘Sixth Form,’ ex-prefects included, lounging about in suits and ties,  all of them grey-haired, some pot-bellied, reenacting their glory days by posing in front of various school locations, swapping tall tales about the good ‘ol days.

I stared and stared. Here they were, the officially sanctioned bullies of the senior class in school, the ones given license to enforce the school’s draconian disciplinary code in their own particular style: they could make you run punishment drills, the dreaded ‘PD’s, for a wide-ranging list of offenses; they could hit you with cricket bats or hockey sticks, or just slap you hard across the face if you were deemed insolent; they could tell you to go get your trouser pockets stitched up by the school tailor if you were caught walking around with both hands in your pockets; and on and on it went. They could, and they did. Power of the absolute varietal was granted them, and they exercised it; here, there was no shyness to be found. And it corrupted them, if their interactions with those below them, their subjects, the ones who dreamed of becoming abusers themselves when their turn came, was any indication.

I was tempted to write, as a lurker, in the comments space, “Did you guys reminiscence about the time when you were bullies and beat up those younger and weaker than you?” But I didn’t. They’d moved on; they had to. My memories remained; they had been stirred up by the photographs I had just viewed, and I’d already found other ways to integrate them into my life. (Including writing a book, in progress, about my boarding school days.) The academic philosopher in me also said that these were not the same persons I knew; they had changed, they wouldn’t know what to make of my gate-crashing remark.

I clicked out, and moved on. And wrote here instead.

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.

Bertrand Russell On Deterrence By Making ‘Freedom More Pleasant’

In ‘What I Believe,’ an essay whose content–selectively quoted–was instrumental in him having his appointment at the City College of New York revoked¹, Bertrand Russell wrote:

One other respect in which our society suffers from the theological conception of ‘sin’ is the treatment of criminals. The view that criminals are ‘wicked’ and ‘deserve’ punishment is not one which a rational morality can support….The vindictive feeling called ‘moral indignation’ is merely a form of cruelty. Suffering to the criminal can never be justified by the notion of vindictive punishment. If education combined with kindness is equally effective, it is to be preferred; still more is it to be preferred if it is more effective….the prevention of crime and the punishment of crime are two different questions; the object of causing pain to the criminal is presumably deterrent. If prisons were so humanized that a prisoner got a good education for nothing, people might commit crimes in order to qualify for entrance. No doubt prison must be less pleasant than freedom; but the best way to secure this result is to make freedom more pleasant than it sometimes is at present.

Russell was a logician, so he cannot resist making a simple logical point here: if you want prison to represent an uncomfortable alternative to ‘the world outside’ that constitutes an effective deterrent to crime, you have two choices: make prison conditions much worse, or make the state of ‘the world outside’ much better. Our reactions to the world we encounter rely on contrasts and conditioning; it took a princess used to the utter luxury of royal palaces to find the pea under the pile of mattresses unbearable; the parched wanderer in the desert finds the brackish water of a dusty oasis the sweetest nectar of all. It is not inconceivable that many who are used to endemic and grinding poverty, hunger, and violence might find prison not such a bad alternative, and find that its supposed terrors, when viewed from afar, are entirely lacking in deterrent effect. (That sad old saw about criminals committing crimes in order to get three square meals and a roof over their heads perhaps bears repeating here.)

Unsurprisingly, the vindictive and retributive mentality of societies informed at heart by the “theological conception of ‘sin’,” entirely unconcerned with the actual and effective amelioration of social ills, chooses the former of the options listed above. Moreover, the emphasis on retribution acts as a powerful distraction from clear thinking on what might have made criminals act the way they did–perhaps if ‘the world outside’ were improved, some of the causal chains leading to the commission of crime could be disrupted.

Note 1: The details of this shameful scandal and its gross violation of academic freedom  are still worth reading after all these years (especially because, as the Steven Salaita affair reminds us, academic freedom remains under assault.) Paul Edwards‘ ‘Appendix’ in Why I Am Not A Christian (Allen and Unwin, New York, 1957) contains the sordid and infuriating details. Edwards’ essay is in turn based on The Bertrand Russell Case (eds. Horace Kallen and John Dewey, Viking Press, 1941).

Prisons And Boarding Schools: The Informer Phenomenon

I’ve made note here, on this blog, on some interesting similarities between prisons and boarding schools: the discipline, the regulation of time, the uniforms, the social dynamics. Yet another similarity may be found in the ubiquity of informers: moles, spies, double-agents, leakers, snitches–call them what you will–conduits for the passage for information to administrative and disciplinary authorities on inmate (student) activity.

In my boarding school, where discipline was enforced by schoolboys themselves–the so-called ‘prefects,’ drawn from the ranks of the graduating class, the ‘sixth-form‘–informers were feared and despised alike (as they always are.) Complaints and mutterings about heavy-handed punishment–perhaps via the dreaded punishment drills–all too often, and mysteriously enough, found their way to the ear of the prefects concerned, and reprisals and crackdowns against those who had dared question authority quickly followed. The identities of the informers remained artfully hidden: they never informed carelessly enough to allow their cover to be blown;  “there were only three of us present when we talked about X; you and I were punished, so the informer must be Y.” Instead, these informers only informed when they were sure they had enough obfuscatory cover. (Shades of crypto crackers not making it too obvious that a particular cipher had been cracked by not acting too expeditiously or efficiently on the revealed information.) On one occasion, a large group of students in a classroom made some bitter comments among themselves on how some prefects had been a little too heavy-handed in their dishing out of corporal punishment during punishment drills; a day later, two of the students in that group found themselves dragged out of a basketball game and forced to perform a particularly exacting drill supplemented with occasional slaps to their faces and the back of their heads. (The informer’s most valuable reward–over and above any material benefit–was to be free of the worst of these disciplinary crackdowns.)

My post today is prompted by the note on self-policing in response to pervasive surveillance that I posted over the weekend; the methods change, the effects are the same. For of course, all too soon, we, the inmates, suspected each other to varying degrees and the quality of our conversations and interactions suffered as a result; we were not sure what would be reckoned as subversive or offensive. Planning for illegal activities like sneaking off for a smoke was obviously problematic, but what about saying something rude about a prefect or a teacher? Better to be safe than sorry; better to zip it.

The informers’ cover was not perfect, of course, and sometimes, by dint of informal detective work, a pattern of sorts of emerge, and a suspect or two would be identified. Reprisals against them were brutal; they came at the end of the year, when all scores were to be settled. Sometimes these consisted of beatings on campus; sometimes these took place off-campus. If this sounds horrifying, it should be. But then, so was the system of penal discipline imposed on the students in the first place.

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.

Gideon’s Army: Fighting A Just War

The first time I saw Gideon’s Army, Dawn Porter‘s documentary about three public defenders fighting a lonely battle in the American South, I watched impassively, even as anger and sadness swirled within me. The second time I did so–yesterday, in a classroom with the students in my Philosophy of Law class–I blinked back tears. (More anon on how the company we keep in our movie-watching experiences changes our perceptions of the work on display.)

I could see horrified expressions in the classroom; I could sense these young men and women were coming to realize–if only in part–the true dimensions of the cruel and inhumane penal system that destroys so many lives everyday. When the lights came on, I asked for reactions. “It’s a disgrace” was the first one. I didn’t need to ask what was.

Here is how it goes. Roughly. If you are arrested, you will be thrown in jail. To be released before you are tried, bond or bail must be posted. If you cannot afford those, you remain in jail–while the remnants of your life, your family and your career for instance, go to seed. Once you go to trial, if you cannot afford legal representation, a public defender will be appointed for you. (Thanks to the Sixth Amendment and Gideon vs. Wainright–the history of which you can find in Anthony LewisGideon’s Trumpet, legal counsel is now every defendant’s constitutional right.)

Unfortunately, the numbers are against those accused of crimes. Twelve million Americans are arrested every year; many of them will be represented by an ‘army’ of fifteen thousand public defenders. They are overworked–some have as many as 180 cases on their plate; they are underpaid–they struggle to make rent and pay off loans. Sometimes their clients are grateful, sometimes not. They must navigate through a system that, contrary to its lofty ideals of ‘innocent until proven guilty,’ operates instead on the dictum ‘guilty until proven innocent.’ They are attempting to rescue lives from being thrown into the waste heap that is the American prison system; very few institutions seem to support them. Some institutional structures of the society they are embedded in–like poverty and racism, and of course, that monster, the war on drugs–work against them at every step. (So do some matters of legal procedure.) Unsurprisingly many public defenders leave for greener pastures. Who can blame them?

Justice is hard to obtain under these circumstances. Even the guilty do not seem to deserve the savageness of their penalties: Five years for robbing a man of ninety-six dollars? Ten years–maybe even a life sentence–with no possibility of parole for armed robbery? But it gets worse. Sometimes–too often–the innocent plead guilty to crimes they never committed, unwilling and unable to go to trial and take the risk they might go away for even longer.  Let the horror of that statement sink in for a second: an innocent person might be condemned to spend years of their life in a jail, a venue where they will be subjected to violence of many different stripes, only to emerge with their lives shattered, their future prospects irreparably damaged.

This system, this supposed dispenser of justice and keeper of the peace, is anything but. It is immoral and criminal. It does not deserve our allegiance.