Originally ran in New York Law Journal on March 26, 2014
The United States spends more than $80 billion a year on corrections. In the last three decades of the twentieth century, incarceration rates rose 500 percent. One in nine state government employees now works in corrections. The recidivism rate across the nation is more than 67 percent. Our nation boasts more than 10,000 people in solitary confinement. One in 20 prisoners reports being raped. These statistics may be startling to some, but as Columbia Law Professor Robert Ferguson points out in his poignant new book, Inferno: An Anatomy of American Punishment, it is hard to grasp the meaning of such numbers. “Actually knowing what inmates endure presents a serious complication with no simple solution.” He asks whether we can really comprehend punishment at this level.
An exploration of literature, philosophical reflections, legal texts, and case law, the book addresses the separations in the function of punishment such that “no single official ever has to look directly into the abyss.” Ferguson’s point: we have created a criminal justice system that is bifurcated in a way that legislators, police, prosecutors, and judges play their role in sending individuals to jails and prisons. But what happens next? Much of our nation’s incarcerated population is sent to facilities where the “suffering of the convicted is carefully arranged to take place somewhere out of sight.”
Ferguson writes that it is time to examine how punishment is actually working in America. With overcrowded prisons teeming with poor and mostly minority populations; slews of prisoners filing lawsuits alleging inhuman conditions full of degradation and physical abuse; and extraordinarily long prison sentences disproportionate to the original crime, the book asks a heartbreaking question, “Do we know what we are doing?”
Ferguson walks the reader through some of the most influential thinkers on the justice system from: Jeremy Bentham, who wrote of the evils in imprisonment, to James Q. Wilson, who espoused a punitive approach toward punishment, to Michael Foucault, who in 1979 wrote about the separation between legal decision making and subsequent penal punishment. Surprisingly, Ferguson points out, Foucault is not widely cited among legal scholars today. Ferguson posits this is because he focuses on the plight of the punished and not on the role of the punisher.
The book’s message is so powerful precisely because Ferguson is able to create emotional connections through his discussions of literature and their significance to justice and punishment. He explores the role of both the punisher and the punished. In one such instance, by delving into the characters and horrifying narrative of Franz Kafka’s “In the Penal Colony,” he points out Kafka’s prescient message that modern technology may take over punishment and create even more distance between punisher and punished. Today, technology and public policy have created the 21st century mass incarceration machine that incapacitates 2.3 million people.
Not lost on the reader is the question of why our nation is such an outlier compared to other democratic countries. The incarceration rate in Europe is 1 out of 1,000 while our nation imprisons 1 out of 143 people for longer periods of time under objectively worse conditions.
How has America let this happen? Did our nation commit moral neglect? Are Americans misinformed about how we treat those who end up behind bars? Was this move toward punitive punishments purposeful? The book places much of the blame on the vast disconnect between the institutions that wrestle with and manage the legal aspect of punishment and the reality of what it means to be punished. How does it really feel to spend day after day behind bars?
Perhaps the most interesting chapter in the book investigates the roles of different officials in the “punishment regime” from legislators to correctional officers. Ferguson characterizes legislators as the most irresponsible punishers in America for their passage of draconian measures increasing the number of crimes in the criminal code, enacting stricter drug laws, and passing truth-in-sentencing laws while also increasing the use of mandatory minimum sentences. The book suggests that it will take generations of policymaking to eradicate the legislative tangle that our country has mired itself in with respect to unnecessarily punitive measures that drive our nation’s prison population.
Ferguson also portions out some blame to the power given to prosecutors through their ability to make charging decisions and often control the plea bargaining process with defendants. Raising echoes of the late William Stuntz’s lament in “The Collapse of American Criminal Justice,” Ferguson also mourns the disuse of the jury system in the United States.
Juries, used in less than 5 percent of criminal justice cases nationwide, are no longer an integral part of our justice system. The costs are immense. Evidence suggests that jurors punish less severely than the rest of the legal system would do; the degree of distance from sentencing is important. And, Ferguson suggests the decline in jury use produces a degree of distance from the sentencing process for lay persons critical to the bifurcation of the punished and the punisher.
Judges are not given a free ride in this powerful critique of the justice system. Insulated from the realities of their decisions, most judges do not walk the corridors of our nation’s jails and prisons observing the horrors of imprisonment. Would some sentence differently if they did?
Where do we go from here? Can we as a society change how we punish our citizens? Can we at least begin to understand what punishment has become to those who suffer in our jails and prisons? Ferguson posits that nothing will change until we change the nature of the system itself and how we regard the idea of punishment.
Ferguson explores the philosophical nature of knowing what inmates endure in his discussion of Charles Dickens “Bleak House.” In the novel, a shop owner cannot understand the struggles of the poor until he visits one of the poorest areas of London at night, encounters an impoverished young orphan who sweeps the streets and notices the “ghetto crowds that swarm around the visitors like insects.” Dickens understood that wealthier people faced significant impediments to truly comprehending what it meant to be poor.
Ferguson’s book attempts to cross a similar divide so we can begin to truly feel the predicament of our nation’s 2.3 million prisoners.
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