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Excerpted from Inferno: An Anatomy of American Punishment by Robert A. Ferguson (footnotes omitted) published by Harvard University Press. Copyright © 2014 by Robert A. Ferguson. Used by permission. All rights reserved.  No part of this excerpt may be reprinted, reproduced, posted on another website or distributed by any means without the written permission of the publisher.




The Law against Itself



cover art

Inferno: An Anatomy of American Punishment

Robert A. Ferguson

(Harvard University Press; US: Mar 2014)

How Might It Be Done?



More than seventy years ago, the leading legal philosopher of his day, Morris Cohen, explained why one should be hesitant to suggest reform in criminal law. “Those who are convinced of the existence of injustice in the established law and who struggle for their abolition are more often defeated by general inertia and unreasoning fear of change than by any rational counter argument.” The law does not change easily. Must suffering make sense? Apparently it does in punishment even if it does not when the law looks at its own practices, and the onus will always be that it does.


H. L. A. Hart puts the problem differently but he raises the same difficulty. In the face of “modern skeptical doubt about the whole institution of punishment,” he sees the current arrangement as an unpleasant but hard-won compromise where “the disgrace attached to conviction for crime” is as important a deterrent as “the severity of the punishment.” All unpleasantness put to one side, Hart, the legal positivist, can still claim that a compromise has been struck. If so, who has the right to be difficult over negotiations already made? The barrier of established arrangements always resists reform even though, as we see once again, disgrace and shaming remain a part of the package in punishment, with no limits set on either.


Both warnings about the strength of the punitive impulse are important, but Cohen’s is more comprehensive than Hart’s. Cohen makes “general inertia” rather than an internal argument the problem. Much more than law is involved. The whole complicated interface of law and society is responsible. Moralists may respond, “If the alternative is inertia, outrage against injustice may keep you alive,” but can that kind of answer be enough against the passiveness that characterizes civilization itself? Probably not unless concrete acceptance and philosophical avenues of address somehow join in response to injustice.


Concretely, we are already there. The problem is very much before us. In the summer of 2013, 29,000 inmates in California state prisons went on a hunger strike to protest deplorable prison conditions. Their protest on an unprecedented scale included two-thirds of the thirty-three prisons across the state and all four private out-of-state facilities where California sends inmates. The complaints? Overcrowding remains perilous everywhere, and 10,000 inmates in California live in long-term solitary confinement, a practice that most liberal democracies and human rights organizations identify as torture.


Ponder for a moment these concrete facts. Imagine how hard it is for prisoners to organize within one prison, much less across an entire system. “There aren’t many protests in prison,” explains one veteran inmate. How can there be? “Authorities exercise absolute power and demand abject obedience.” Anyone who protests “has little to gain and too much to lose: his job, his visits, his recreation time, his phone privileges, his right to buy… in the commissary.” There are no limits on what prison guards can do. “The ways even a bystander to the most peaceful protest can be punished are limited only by the imagination of the authorities.” These words indicate what has to be true. For a protest of any size to work, prison conditions have to be intolerable for everyone in them.


The long hunger strike of 2013 was the largest in the history of the state, and yet the California Department of Corrections and Rehabilitation—already facing a threat of contempt of court for failing to honor the Supreme Court’s directive that 10,000 more prisoners be released from overcrowded facilities—began by refusing to recognize the fact of the strike “until inmates have refused nine consecutive meals.” Says a lawyer who represented inmates during a much smaller strike in 2011, “Officials have this bunker mentality, but now it’s like a house of cards is falling down.”


Matters really have reached a breaking point in American prisons. The many elements—theoretical, practical, economic, and psychological— that have caused punishment in the United States to increase by leaps and bounds have been in force for a long time and dominate institutional thinking. How dominant are these elements? None of the modest stock reform measures, much less the more intricate reforms mentioned in the last section, have a chance of being passed in prison complexes today. The genie of punishment is at large. How can we coax him back into the bottle where he belongs?


Concreteness by itself is clearly not going to be enough to effect prison reform amid a host of other ills in American life. As long ago as 1992, Pulitzer Prize–winning reporters identified a series of national dilemmas in a best-selling book titled America: What Went Wrong? Individual chapters covered the downward mobility of the middle class, difficulties south of the border, tax incentives favoring the wealthy, the collapse of vital businesses, malfeasance in global opportunities, the dangers of deregulation, the health insurance crisis, unscrupulous insider speculation, lost pensions, and political corruption in Washington.


Sound familiar? All these difficulties remain unsolved and are worse today, and to them we can add widespread electronic fraud, war, the bankruptcy of a major city (Detroit), a long recession, and demeaning political deadlock over immigration, environmental issues, unemployment woes, food stamps, the budget, and general governmental policy.


The very way Americans think about themselves has changed in dealing with these problems. A once-rugged American individualism has devolved into “a deeply divided self” coping with equally fragmented external divisions. Theorists talk of “an imitative self” where “the call of personhood” might not be heard, “the disconnected self ” consumed with self-love and therapeutic needs, “the embodied self” deep in “empathetic intersubjectivity,” “consumer selves” with “inadequate resources to achieve the selves desired,” and technologically driven selves controlled by the machines around them. Each of these selves recognizes the others in a common fear: “loss of self-coherence in the postmodern world.”


No thinking citizen can avoid contemplating these external and internal problems in one of two ways. Some feel that the country may be losing its way. Others respond that many of these concerns have to be balanced against advances in democratic understanding. Yes, society is “beset by unsolved problems,” but “for women, wage laborers, racial, ethnic, sexual preference, or religious minorities, the poor, and the elderly, progress toward genuine inclusion in the past half century has been extraordinary.”


Frustration and conflict on issue after issue flow from this primal division in communal assessments, and with them comes a certain fatalism. Why start with the nation’s penal system with so many other intractable problems on the table? Not coincidentally, whenever prison reform comes up in a group of lawyers, this question of priorities is the first one raised. The legal profession prefers individual predicaments to larger matters of social justice, and even on a social scale prison reform has low status; perhaps it comes too close to home.


Is there an answer to such fatalism? Rapid change and permanent difficulties can also be catalysts. They have a way of forcing new thought. A number of contemporary thinkers answer the postmodern condition with suggestions about how to cope with injustice now. They write to instill belief in philosophical avenues of address for dealing with the communal problems of today.


Some examples are more valuable than others. Daniel Kahneman in Thinking, Fast and Slow proves, contrary to much conventional wisdom, that “concerns for fairness” are often as important as self-interest in the way people make their decisions. Thomas Nagel in Equality and Partiality posits the need for an “assumption of negative responsibility” in our relations to one another. “We are responsible, through the institutions which require our support, for the things they could have prevented as well as for the things they actively cause.”


The list of conceivable initiatives is long and involves our most original thinkers. Jürgen Habermas in Moral Consciousness and Communicative Action uses a concept of the philosopher Richard Rorty to reduce the frictions in conflict. “Commensurable discourses” (ones with “reliable criteria of consensus building”) need to be distinguished from those that “are incommensurable” with the added proviso that incommensurable discourses can still be edifying if understood for how they claim to be “sufficient unto themselves.” How we accept conflict is half of the answer to it.


Postmodern angst and public malaise exist, but they do not disturb what Amartya Sen in The Idea of Justice defines as “the intellectual basis for moving from a general sense of injustice to particular reasoned diagnoses of injustice.” Nor do they prevent Charles Taylor in The Ethics of Authenticity from deriding a “culture of self-fulfillment” that causes “many people to lose sight of concerns that transcend them.”


Taylor goes further. He traces many of the separating forces in modern life to misguided “forms of individualism.” “It does indeed appear that the more self-centered forms of fulfillment have been gaining ground in recent decades,” accompanied by “a fall-off in citizen participation.”


Taylor, like the other thinkers just mentioned, is not picking fights so much as minimizing the conflicts in difference. He identifies “self-centered practices as the site of an ineradicable tension.” To establish new possibilities in community “requires a horizon of significance… a shared one” and better forms of “responsibilization.”


These writers concentrate not so much on a projected self or citizen, the lodestone in American identity in previous eras, as on something greater and more cohesive in response to the crush of an increasingly crowded, intrusive, contentious, and heterogeneous world that must find new ways to get along with itself. They grapple with the idea of what might be named “a democratic persona” in search of communal answers. Such a persona, a form of “general will” or collective identity, would give more priority to communal justice rather than individual success or prosperity or power as its concern.


It is, of course, a favorite academic sport of theorists to invent new terms for old concepts, but the novelty here lies in the notion of a mindful togetherness across differences in a way that might solve problems otherwise thought to be intractable. The search is for mutual ground that is not only possible but creative in the name of what Taylor labels “the equal value of different identities,” a goal only possible in the fullest grasp of an inclusive democracy. Only then can we appreciate “how developing and nursing the commonalities of value between us become important.”


The most widely known current comment on civic indifference, on the lack of a working democratic persona, comes from Robert Putnam in his study Bowling Alone from the millennial year 2000. Noting the ebb in communal spirit, Putnam delivers a challenge of sorts: “We Americans need to reconnect with one another.” He can mount this challenge across many pages with enthusiasm because he thinks the problem can be the solution through a reversal of implications.


Putnam’s thesis begins with the corrosive force of difference in contemporary society, and he agrees that it is everywhere and growing. In the short term, ethnic divisions will increase tensions and challenge social solidarity. However, in the long term, they will become a new positive force in the creation of “more encompassing identities.” Social interaction, a form of “social capital,” will develop better “norms of reciprocity” and “new levels of similarity” in a healthier community. “Social capital” happens to be fragile in contemporary America, and Putnam has to admit “we do not yet see evidence of a general resurgence of social connection or involvement in the public life of the community.” He then counters the admission with a series of bridging functions that will make a difference.


There are practical reasons for all these abstract emphases in modern American philosophy. Most of the problems that the United States faces today are solvable, but they are not solved because its citizens do not care enough about the collectivity to act, and the greatest negative symbol of that indifference is the forgotten inmate who is treated worse than anyone else and certainly worse than anyone should tolerate. We need to remember that it is how a culture treats the worst in its midst that defines it. Helping the helpless is the ultimate sign of cohesion in a modern community, and not helping the helpless has larger consequences.


If a community simply dismisses its worst problems by putting people permanently away, where does it stop identifying problems that belong in that category? There is no obvious stopping point, and that has been an element in the growth of the nation’s punitive impulse. Soon enough, the same logic allows a community to dismiss people at large who have problems that defy easy solution, and the collectivity begins to divide between those who feel on top of things and those who, however regrettably, must be left behind. It becomes easier and easier to dismiss all problems and to accept misfortune as the natural state of the unfortunate. We already see this tendency in prolonged communal controversy over a safety net for those who are too poor to afford health care.


What happens to a community that does not care for its worst-off and, portentously, seems to need the category of the fallen as part of its identity? Some scholars have started to identify the nature of the injustice involved. But the most graphic recognition comes from the American fiction writer Ursula K. Le Guin in her most famous short story, “The Ones Who Walk away from Omelas.” This prize-winning account is frequently anthologized for its allegorical references and for Le Guin’s direct claim that the story addresses discrimination in America.


The idea for the story originates in a comment by the philosopher William James, and Le Guin says of it, “The dilemma of the American conscience can hardly be better stated.” James, in “The Moral Philosopher and the Moral Life” (1891), wondered whether a people could accept a perfectly happy society “on the one simple condition that a certain lost soul on the far-off edge of things should lead a life of lonely torment.” Would that society “clutch at the happiness so offered,” or would it come undone knowing “how hideous a thing would be its enjoyment when deliberately accepted as the fruit of such a bargain” (275)? Le Guin makes unfair imprisonment the topos of that lonely torment.


“The Ones Who Walk away from Omelas” gives the story through its title. Le Guin posits a utopian society that depends for its happiness on one innocent desperate child imprisoned in horribly cramped, filthy conditions at the center of its city: “All understand that their happiness, the beauty of their city, the tenderness of their friendships… depend wholly on this child’s abominable misery.” Those who go see the child “are always shocked and sickened at the sight” when they are told “there is nothing they can do.” They in fact do nothing, but some (no exact number is given) do act by walking away from the city of happiness, and they never return (282–284).


The innocent imprisoned child in Le Guin’s allegory cannot be taken as the average inmate in an American prison, but the bargain struck exists on similar terms. Le Guin uses her “psychomyth” to draw attention to discrimination in America. How much of an ethnically inflected underclass forced to live in a crime-ridden and openly transgressive environment should be imprisoned in horrible conditions to assure the maximum security and happiness of the rest of society?


The difference is that no one in the United States is made to go and look at the imprisoned, but what would happen if Americans did? What if a goodly number did tour a supermaximum-security prison instead of being prohibited access, as happens now? The keepers of the American punishment regime know the need for secrecy about much of what goes on in the nation’s prisons. No one has to walk away from what is not seen, although some do in Omelas. Not everyone who leaves has gone to see. The knowledge of what is happening has been enough for some of them.


What should knowledge do to one who knows? Should one walk away or walk toward the problem? How bad must the situation be for something to be done? A playwright, Tennessee Williams, offers one standard for acting in A Streetcar Named Desire. Blanche DuBois, a character who lives a lie and offers up lie after lie, delivers an ultimate truth when pushed to the wall. Challenged there, she answers “Deliberate cruelty is not forgivable.” That is what we have found over and over again in the American punishment regime: not just incarceration but unforgivable cruelty.


Inferno: An Anatomy of American Punishment has tried to tell that story from all the angles that together have made unconscious cruelty so terribly overt and deliberate. 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. The dignity of every life has to mean more than someone else’s indifferent, much less vindictive, control over it. Anything less is a deprivation for all concerned. The American justice system claims that incarceration and loss of freedom are enough of a punishment. It needs to turn that claim into the truth instead of the lie that lives and breathes in every prison in the country.


Robert A. Ferguson is George Edward Woodberry Professor in Law, Literature, and Criticism at Columbia University.


Tagged as: criminal justice
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