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An Anatomy of American Punishment

Robert A. Ferguson

(NY Times)

As freedom advances, the severity of the penal law decreases. Or so argued Montesquieu, an Enlightenment philosopher whose work profoundly influenced the drafters of our Constitution. Were he alive today, Montesquieu might need to reconsider. The United States may or may not be the leader of the free world, but it is indisputably the world leader in locking up human beings behind bars. We are less than 5 percent of the world's population, but we warehouse 25 percent of the world's incarcerated population. Our per capita incarceration rate is seven times greater than France's, 14 times greater than Japan's and 24 times greater than India's.

Life behind bars is invisible to most of us, but if one bothers to look, it's unremittingly grim. About one of every nine American prisoners are serving a life sentence, many of them without the chance of parole, some 10,000 of them for wholly nonviolent offenses. More than 50,000 prisoners are held in long-term solitary confinement, even though the United Nations special rapporteur on torture has determined that solitary confinement for longerthan15 days amounts to 'cruel, inhuman and degrading treatment.' Prisons offer little in the way of rehabilitation or training for life after incarceration. And even after release, many ex-convicts are barred from public housing, food stamps, certain kinds of jobs and voting. Should we be surprised that the recidivism rate is 67.5 percent?

Our proclivity for incarceration costs American taxpayers about $80 billion a year. And that doesn't count the vast indirect costs visited upon the incarcerated, their families and communities. In 2007, there were 1.7 million children in the United States with a parent in prison. Like so much else in American society, the burdens are not evenly distributed. If current trends hold, one in three black baby boys born in the United States can expect to serve time in prison.

What makes the United States so punitive, and how can we make it less so? Robert A. Ferguson, a professor of law and literature at Columbia University, notes that a dozen or more studies have been written denouncing the situation in recent years, with little noticeable effect. Speculating that these studies failed because they were too narrowly pitched to the legal profession, Ferguson argues that 'the desire for change must come from outside the invested framework.' In Inferno, he brings to the subject 'the disciplines of philosophy, history and imaginative literature.'

Inferno ranges widely to offer a fascinating anatomy of American punishment, drawing on such diverse sources as Kant, Ursula K. Le Guin and William Flew, among many others. (In one of Le Guin's stories, Ferguson writes, a utopian society 'depends for its happiness on one innocent desperate child imprisoned in horribly cramped, filthy conditions at the center of its city.') Ferguson surmises that people have a drive to punish, that we are generally unable to understand the pain and suffering of others, and that America's traditions support an especially virulent 'logic of severity.'

Ferguson's most successful attempt at explanation dissects the division of authority in the criminal justice system. Legislators, driven by the mandate to be tough on crime, address the question of sentencing at a general level, where it may be easier to insist on long sentences because one isn't looking a convicted defendant in the face. The police work the front lines, where they daily encounter the suffering of crime victims. Prosecutors are assessed by their win-loss records, not by whether they have furthered the cause of justice. Judges are constrained by mandatory sentencing laws and inured, by sheer repetition, to the harshness of the penalties they impose. Juries might play an ameliorative role, but well over 90 percent of criminal cases are resolved with guilty pleas, cutting juries out of the process altogether. Prison guards are poorly educated, under-resourced, ill trained and assigned an extraordinarily difficult job. Ferguson puts it well: 'Everyone in the process of punishing has the courage of someone else's convictions to fall back on.'

He insists that the only way out is to reconceptualize punishment. Invoking the circles of hell in Dante's Divine Comedy, Ferguson argues that we need to reorient our prisons away from punishment and debasement and instead model them on Purgatorio, where individuals are restored to heaven through the care and love of others. More prosaically, he calls for decriminalizing drug possession, expert panels to dole out rewards for good behavior, and serious investment in rehabilitation.

These are all good, if not novel, ideas. But the root of the problem - sentence severity - is not limited to drug laws. From 1973 to 2003, the prison population increased every year, even though arrests for most crimes fell, because the average time served almost doubled. Our sentences are frequently two to three times longer than those in Britain and France for the same criminal conduct. There is little evidence that the length of a sentence, as opposed to its certainty, has significant deterrent effects. If we cut sentences in half across the board, there is no reason to believe we'd see an appreciable rise in crime, and over time we would most likely see a large drop in the prison population.

In an attempt to root mass incarceration in American values, Ferguson includes a chart listing 14 abstract concepts ('distrust of authority,' 'exceptionalism,' 'individualism') and 14 loosely related 'concrete scenarios' ('No one should try to tell us what to do'). But these are so sweeping they offer little in the way of illumination. Moreover, the very breadth of such diagnoses may unwittingly imply that any hope of reform is quixotic. Yet Ferguson's account fails to grapple with the fact that mass incarceration is limited to a particular period of American history. Until about 1975, incarceration rates here were relatively low, and roughly matched those in Europe today. The incarceration boom began in the mid-1970s, after Nixon declared his 'war on crime'; accelerated in the 1980s with Reagan's escalation of the 'war on drugs'; and grew consistently through most of the first decade of the 21st century. It has recently halted and even reversed course. This suggests that the problem is not intrinsic to punishment itself, nor to retributive theories of justice, nor even to longstanding American traditions and values.

Altogether missing from Inferno is consideration of how the incarceration rate has begun to drop for the first time in 30 years. The total United States prison population has fallen for three years running. The per capita incarceration rate peaked in 2007, and dropped steadily thereafter. Since 2000, more than half the states have reformed mandatory sentencing laws, and the trend is gaining momentum. Thirty-­two reform bills have passed in the last five years alone. New York and New Jersey have reduced their prison populations by nearly 25 percent, without a commensurate increase in crime. And these reforms have bipartisan appeal, as recent calls for liberalization by Attorney General Eric Holder and Rand Paul illustrate.

There is still much to be done. But it is just possible that we have reached a tipping point, and that the tough-on-crime politics of the 1970s and '80s have been replaced by a smart-on-crime approach that recognizes the shameful waste of resources - human and capital - that our current policy reflects. Crime has dropped, budgets are strapped and the 'war on terror' may have provided a different 'enemy' for politicians to be tough about. Only time will tell, but we may be on our way out of the inferno. If so, the real question is not so much what drove us there but what is behind the reversal - and how can we expedite the correction?

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