Law professor Robert A. Ferguson’s critique of the U.S. prison system misses the point that its purpose is not rehabilitation but civic death
In 2011, intense overcrowding in a California prison resulted in at least one person’s death, which went unnoticed among guards for hours. Inmates were stacked on top of each other in bunk beds filling makeshift spaces, even gyms. Disease and fetid odors proliferated in these cramped quarters, which are well documented in photographs.
The U.S. Supreme Court ruled that the state of California had violated the Eighth Amendment, which protects against cruel and unusual punishment. California prisons were ruled in contempt for severely mishandling inmates’ medical and mental illnesses. As a result, California was ordered to reduce its prison population by 137.5 percent—about 110,000 people—by the end of 2013. The Brown v. Plata ruling was a milestone for those at the mercy of a violent criminal justice system, surviving prison conditions compared to those of a concentration camp.
Justice Kennedy was explicit on the matter: “A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.” In Kennedy’s closing statements he remarked that California’s treatment of its prisoners led to “needless suffering and death.” Not everyone agreed. In opposition to the Supreme Court ruling, Justice Scalia offered up a fantasy of male prisoners’ bodies, writing: “Most [released prisoners] will not be prisoners with medical conditions or severe mental illness, and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”
Perhaps it helps to explain the vast gap between the two judges’ opinions if we consider that inflicting “needless suffering and death” on bodies outside of the law has long been the project of civilization, at least the European model that inspired American democracy.
Two years after the ruling, when California reached the time limit to reduce its prison population, imprisoned people went on hunger strike. About 30,000 inmates across the state joined to protest inhumane prison conditions and the practice of indefinite solitary confinement. Hundreds of people have been languishing in these secluded cells, cut off from any interaction with the outside world, for up to fifteen years. In response to the strike, the California prison system moved the strike’s alleged “leaders” to even more isolated quarters referred to as “Administrative Segregation Units” where they were cut off from any outside contact, including access to their belongings, legal documents and the news. Hunger strikers were force-fed. Evidently, “needless suffering and death” remain cornerstones of American prisons, despite the Supreme Court ruling.
The past several years have seen a spate of prison-reform books that address the problem of prisons in the U.S. The books ask broadly similar questions: How did the U.S. become the number one producer of prisons? Why, in particular, does the U.S. lock away generations of young black men and women, excising them from the American polity? Black Americans are incarcerated at six times the rate of white Americans: One million out of the 2.3 million people incarcerated today are black.
Robert A. Ferguson
Harvard University Press
A large portion of his book is dedicated to explicating the American criminal justice system as a “punisher” that always tends toward severity and ultimately sadism because the punisher receives pleasure from inflicting punishment. Unlike prison abolitionists, Ferguson takes the necessity of punishment for granted, but he is troubled by how mass incarceration exceeds the logic of punishing and instead just ruins lives.
His examination of the problem of prison relies on a progressive narrative of history celebrating the achievements of liberalism. But many other theories of prison suggest that it is not an inevitable outcome of modernity or of the concept of punishment. Rather, it is the calculated outcome of a modern democracy that, to use the words of Achille Mbembe, deploys race as a biopolitical technology intended to uphold the murderous function of the state. Prison is not an extralegal zone, rather it reflects the “normal state of law” where death is the norm.
His assumption that the function of prison exists as a reasonable form of punishment ignores the structural racism that cements prison as a place intended to deny the racially marked “criminal” their personhood.
Unlike Mbembe, who grounds the history of imprisonment and punishment in the Atlantic slave trade and European colonialism, Ferguson goes back to 14th century Europe to interpret 21st century American prisons. He compares Dante’s hell in The Divine Comedy to today’s prisons, demonstrating that prisons “mete out everlasting punishment; it can never be fully satisfied no matter what the doomed do or say.” Dante’s inferno is a hell of absolute justice, where every punishment is perfectly fitted to the sin, but even Ferguson can see that U.S. prisons make absolute not justice but injustice. In response, he searches in earnest for a “new theory of punishment” and prison practices that will avoid the severity and sadism found in today’s prisons, one that will provide hope and forgiveness to “the doomed” in prison. Instead of hell, Ferguson argues, prison should be more like purgatory, which he sees as “a place where one had time to reform and gain salvation through a healing form of only temporary punishment.” Even better, Ferguson claims of his improved, purgatorial vision of prison, it will return “a measure of control to the living.”
But prison as purgatory understands imprisoned people as already dead, and segregates them from the living. They are forced into repentance while the living dictate the conditions for their return to hell or ascension into heaven. Celebrating the lessons he reads in Dante’s work, Ferguson provides a nugget of wisdom: “Belief in the possibility of goodness counts. It is the basis of reform.” But this is nonsensical in relation to a system that basically conflates goodness with whiteness and money. His purgatory is “corrective” and includes vocational training, therapy and education, providing hope for a better life on the outside where the rehabilitated criminal can transform into a gainfully employed American citizen. There is no foundation for this: the dream of rehabilitating criminals barely conceals the actual function of the U.S. criminal-justice system, which is to segregate and dehumanize racialized people.
From solitary confinement to tacitly condoned prison rape, American prisons are hermetic death traps, and those who survive them have significantly less access to the resources they need to go on living. By relegating people to the category of “criminal” and ostensibly deserving of prison time, the system excises them from the American polity and occludes their access to the resources they need. The list of exclusions that accompany a felony charge is constantly growing. Formerly incarcerated people are barred from: the Pell educational grant, employment, public housing, Medicaid, food stamps, and the right to vote. In other words, we want prisoners dead. Sociologist Loïc Wocquant describes this exclusion from social benefits as “civic death” in his essay “From Slavery to Mass Incarceration.” As the mark of race, the civic death of an incriminated black person begins long before and remains long after their prison time.
In spite of small reforms—heavily punitive drug laws have been repealed in some states—the U.S. prison population increased 700 percent from 1972 to 2011, although reported violent crime has gone down since 1972. The possibility of even the smallest reforms is overshadowed by the fact that, although many Americans are familiar with the injustices of the prison system, its existence goes unchallenged. This leads to an important question conveniently unexamined in Ferguson’s book: Who are the Americans that enable mass incarceration, and who are the outsiders expected to accept the needless suffering and death that is prison? Justice Scalia’s description of the prisoner as the “fine physical specimen in the gym pumping iron” (even though the gym is in reality filled with bunk beds) conjures the image of a bestial male predator on the prowl looking for innocent prey (presumably delicate white bodies). This construct makes the criminal’s languishing in prison acceptable because they should be locked far away from the public and prevented from harming the innocent.
Aside from being an inaccurate representation of the actual people sent to prison, this does not at all reflect the reality of the intimate nature of most violent acts, which take place among people who know each other. Scalia’s imaginary black male criminal threatens all of America. He is both responsible for and epitomizes the pervasive violence in all of American culture, and is always and only a dangerous criminal. The “fine physical specimen” is never white, and for that matter never looks like a member of a midwestern militia or the Aryan brotherhood.
In Ruth Gilmore’s essay “Race, Prisons and War: Scenes from the History of U.S. Violence,” she asks, “What is the continuity that produces and exploits group-differentiated vulnerability to premature death so casually, without fear of political consequence or moral shame?” The category of the criminal marks difference and determines the possibility that members of the group defined by that difference will be vulnerable to premature death and imprisonment. While the results of this group-differentiation are torture, imprisonment, and social control, the state apparatus performs its task as if the process is natural and therefore unstoppable and beneficial. The condition of the criminal’s civic death negates their humanity while making them culpable for their own vulnerability.
In one of many of Ferguson’s appraisals of the prison problem, he tackles the question of race: “Implicitly or explicitly, law-abiding citizens think of prison as a secular version of hell, an analogy often used in contemporary descriptions of prison life. 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. A majority of prisoners in American come from impoverished ethnic minorities, whose members are arrested more frequently and punished more heavily than other citizens for the same crime.” This analysis is a tautology when “law-abiding” implicitly means white.
Prisons continue the work of a white supremacist society founded upon the principles and institutions of colonialism, slavery and capitalism. A meaningful analysis of prison must identify race as a source of people’s imaginary, erroneous construct of the “criminal.” This imaginary manifests in evolving practices that produce racialized premature death, including racial profiling, aggressive police practices, low performing and under-resourced racially segregated schools, urban segregation, and gerrymandering. Instead grasping prison as part of a network of institutions that are deliberately lethal to racialized people, Ferguson creates a chart of “communal attitudes” of “Americans” supporting severe punishment. While he never explicitly states who comprises the “communal” or “Americans” when he deploys these terms, it can be safely assumed that they refer to those outside the web of incarceration: white middle class and affluent Americans. Some of the attitudes that make it onto his chart include: the American obsession with the right to bear arms and the investment in individualism. His list does not explain why severity in punishment is targeted toward specific groups or why the punisher is almost always white and the punished is almost always black.
The right to bear arms remains a tenaciously supported right. But this “American” attitude exists in an imbalance, like all the attitudes on the chart. When black people take advantage of the right to bear arms, they become dangerous criminals. For example, George Zimmerman was able to justify killing Trayvon Martin by invoking the non-black perception of a young black man as a criminal, even without a gun.
At the beginning of Inferno, Ferguson searches through literature to improve scholar Nigel Walker’s “seven features of punishment.” Walker’s features function as a checklist for effective and just punishment, for example: “Punishment should offer justification and not be mere sadism.” Ferguson, however, feels it’s a problematic oversight that Walker’s list offers no way to prevent what he perceives as the inevitable “sadism” of the punisher. Throughout Inferno, Ferguson uses examples from literature to prove that the punisher seeks pleasure from inflicting punishment. Unexpectedly, by the end of the book, Ferguson adds a comforting eighth feature to Walker’s list: “The life of the recipient of punishment must continue to be worth living.” He claims that this added, essential feature of punishment “tells everyone that what is held in prison is a person.”
Unfortunately, the primary function of prison is to destroy personhood. Unlike the Supreme Court’s 2011 ruling in Brown v. Plata, most cases fighting against Eighth Amendment violations of prisoners rarely make it to court. And if they do, the list of losses far outnumber any wins, including a case described by Ferguson that involved multiple rapes of an imprisoned person, resulting in their suicide.
The Supreme Court’s failure to protect the Eighth Amendment reinforces the fact that prisons are extralegal zones where prison guards hold immediate, complete control over a prisoner’s physical environment. Mbembe describes ”the creation of death worlds, new and unique forms of social existence in which vast populations are subjected to conditions of life conferring upon them the status of living dead.” Prisons in the U.S. function as a death world, because death is the desired outcome for those held in contempt because of race, class differences, and “criminal behavior.”
In Ferguson’s liberal fantasy, the rehabilitative prison of the rose-tinted past has been superseded by a retributive domain of “secular hell.” According to Ferguson, this all hinges on the punisher’s inherent sadism—the punisher can’t stop himself from the pleasure of punishing. But what does this mean when the punisher always represents white America, and the punished is whoever is always already excluded from that space of privilege? Taking Ferguson’s own problematic terms, I suggest we solve the problem by identifying the punisher and forcing them to see themselves for the criminal they are. I don’t suggest we do this peacefully.