Punishment: The U.S. Record
A Social Research Conference at The New School took place on Thursday, November 30 and Friday, December 1, 2006
The conference examined the foundations of our ideas of punishment, explored the social effects of current practices and searched for viable alternatives to our carceral state.
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SESSION I: WHY WE PUNISH: THE FOUNDATION OF OUR CONCEPTS OF PUNISHMENT
Historical and Comparative Perspectives on Punishment Practices, James Q. Whitman
In the early nineteenth century, the American approach to criminal punishment was regarded as the most advanced and humane in the western world, and numerous European visitors made the voyage across the Atlantic to learn from it. Today matters are different. America has the highest incarceration rate in the world. Our punishment practices are far harsher than those of countries like France and Germany. Rather than looking to us for moral leadership, Europeans view us with distaste and apprehension. What happened? How did the great American republican experiment end up yielding a system notable for its harshness, and sometimes brutality? In order to answer this troubling question, we must dig deep into American history, and we must recognize the inherent dangers in certain aspects of the American political tradition. American anti-statism has, paradoxically, contributed mightily to the making of our uncommonly harsh system of criminal punishment. So has the American tradition of egalitarianism, which has tended to undermine any program that might guarantee dignity in punishment. In the early nineteenth century, observers like Tocqueville were confident that American republicanism would always go hand in hand with mildness in punishment. The last two centuries of our history make it hard indeed to feel that kind of confidence any longer.
The Legacy of Theology (Transgression, redemption, atonement, retribution and forgiveness), Moshe Halbertal
The purpose and justification of punishment is usually defined through three main goals: deterrence, retribution and reform. Each of these goals has its inner logic, and it implies in turn different economies of punishment that conflict with one another. I will investigate an earlier and more fundamental conception of punishment as atonement, and its deep connection to sacrificial rituals that still resonate within practices of punishment. Atonement is based upon substitution, in which a harsher punishment is replaced by its symbolic substitute (hence the connection to sacrifice). If punishment is atonement, in each case of punishment there is therefore some element of forgiveness, which makes the ritual of punishment highly ambiguous. This ambiguity is based on the complex relationship of the sovereign (God) and the victim, which include among them the bond of creaturely love. I will investigate this structure through the study of Biblical and religious conception of punishment, and in particular the attitude Rabbinic and Christian attitudes towards crucifixion.
Punishment and the Spirit of Democracy, George Kateb
This paper will deal with the idea that the most democratically suitable defense of punishment is deterrence of the wrongdoer and others. Retribution is, in my judgment, wholly alien to the spirit of democracy. Furthermore, punishment must be inflicted with reluctance. The spirit of democracy is attuned to what I call magnanimity towards wrongdoers. Magnanimity consists of two principal elements: fairness, which is exemplified by the counter-intuitive provisions of due process of law; and by leniency, which means such things as presumption of innocence and mildness of punishment. The history of democracy in Athens begins with an act of leniency: Solon's policy on the indebtedness of the lower classes. Fairness and leniency belong intrinsically to democracy, even though the US and other democracies practice an anti-democratic severity and often rationalize it by reference to the Old Testament or to Kant's theory of punishment as necessary to respect for the personhood of the wrongdoer.
Beyond the Cultural Turn: 21st Century Meditations on Punishment, Bernard Harcourt
Since the modern era, the discourse of punishment has cycled through three sets of questions. The first, born of the Enlightenment itself, asked: On what ground does the sovereign have the right to punish? Nietzsche most forcefully, but others as well, argued that the question itself begged its own answer. The right to punish, they suggested, is what defines sovereignty, and as such, can never serve to limit sovereign power. With the birth of the social sciences, this skepticism gave rise to a second set of questions: What then is the true function of punishment? What is it that we do when we punish? From Durkheim to the Frankfurt School to Michel Foucault, 20th century moderns explored social organization, economic production, political legitimacy, and the construction of the self—turning punishment practices upside down, dissecting not only their repressive functions but more importantly their role in constructing society and the contemporary subject. A series of further critiques—of functionalism, of scientific objectivity, of metanarratives—softened this second line of inquiry and helped shape a third set of questions: What does punishment tell us about ourselves and our culture? What is the cultural meaning of our punishment practices? These three sets of questions set the contours of our modern discourse on crime and punishment. But what happens now, though, now that we are beyond the cultural turn? What today is the right question to ask of our punishment practices? And how can we relate tomorrow’s inquiry back to the central idea that has always and still today motivates the very questioning itself—the idea of just punishment?
SESSION II: WHAT AND HOW WE PUNISH: LAW, JUSTICE AND PUNISHMENT
Changes in the Law: From the Present to the Past, to the Present, Michael Tonry
One way to describe the history of American punishment practices is in terms of a normative pendulum swinging slowly back and forth between opposed normative ideas about personal responsibility and social need. Another is to untangle the functions that punishment has served in maintaining changing patterns of economic, class, and race relations. Thinking about punishment tends to lag decades behind changes in practices and social norms. Our time is an extreme instance. Current prevailing punishment ideas that focus on responsibility, retribution, and proportionality like so many flies in amber reflect and respond to perceived policy problems and normative concerns of the 1970s and have little helpful to say about the 21st century.
Economic Models of Crime and Punishment, John J. Donohue III
Gary Becker launched the economic analysis of law, which has been influential in changing the course of American criminal justice policy. Some of that analysis has been successful in that at the time that Becker wrote his seminal piece there was a rejection of the notion of incarceration as a tool to decrease crime, and the U.S. experience has shown that increases in incarceration have indeed had a dampening impact on crime. But some of Becker's lessons about the need to evaluate costs and benefits of criminal justice policies have not been heeded, and indeed the level of incarceration has been pushed beyond the optimal level in that the costs of incarcerating the last 200-300,000 prisoners in all likelihood has exceeded the benefits in reduced crime. Moreover, while Becker's disciples have played a major role in the perpetuation and expansion of capital punishment in the US, there is a puzzling lack of rigor in the evaluation of the deterrent impact of the death penalty. Becker now concedes that the empirical evidence in support of the deterrent effect of capital punishment is "murky," yet the strong priors that the economic model has generated -- specifically that since demand curves slop downward, the death penalty must deter murders -- has been taken to trump the empirical evidence. The paper discusses whether the theoretical model is powerful enough to guide policy even in the absence of empirical validation.
Retribution and the "Desert" Model: Should Punishment Fit The Crime? Andrew von Hirsch
My presentation will address Retributivism in penal theory. Its focus will be on 'deserts' theory, a contemporary liberal version of retributivism that favors proportionate sentences and moderate penalty levels. The theory emphasizes punishment's role as providing a public valuation of conduct, rather than 'paying back' offenders for their wrongs. The theory has been influential in a number of jurisdictions, including Minnesota and Oregon in the US, and Sweden, Finland, England and Wales, and South Africa. The presentation will sketch the theory briefly, address a number of unresolved problems with it, and then evaluate its prospects for continued influence.
The Forms and Functions of American Capital Punishment, David Garland
Today's American system of capital punishment - defined as the whole set of discursive and non-discursive practices through which capital punishment is enacted, evoked and experienced - has a peculiar institutional form. This paper argues that an analysis of that distinctive form, and the processes that have produced it, can help explain the retention of this institution in a context of widespread abolitionism and provide important clues to the real functions of today's death penalty.
SESSION III: SPECIAL EVENT
Richard Gere and Carey Lowell: A Reading of Prison Writings
SESSION IV: WHO WE PUNISH: THE CARCERAL STATE
The Rise of the Carceral State, Jonathan Simon
The reconstruction of American political institutions since the 1960s around the problematic of crime, and forging of mass imprisonment as a preferred policy option in the succeeding three decades is now being recognized (Beckett 1997; Garland 2001; Simon forthcoming 2006). It deserves to be seen as one of the great changes in our political and constitutional development, up there with Reconstruction and the New Deal (Fraser & Gerstle 1989). But like those earlier profound transformations, the most enduring changes take place below the threshold of the major political institutions, at the capillary levels where power is exercised not just up and down, but laterally. At this level we can observe that the carceral state is anchored in everyday struggles for power where the ability to name certain identities, claim certain rights, and blame certain responsible parties determines outcomes. In this paper I argue that the “carceral state” by this measure is far more powerfully rooted than the “welfare state” it is often contrasted to. Concurrently, I suggest that any effort to move American society beyond mass imprisonment will require a vigorous contestation with these identities, rights, and responsibilities whose history we must attend to.
Inequality and Punishment, Bruce Western
Over the last thirty years, the prison population of the United States has increased more than sevenfold to over two million people, including large numbers of young black men with little schooling. By the early 1990s, almost 60 percent of black male high school drop-outs in their early thirties had spent time in prison. Record incarceration rates significantly influence social inequality.
Institutionalizing large numbers of disadvantaged young men creates "invisible inequality" in which standard measures of labor force status provide an optimistic picture of economic well-being at the bottom of the social hierarchy. Mass imprisonment also deepens inequality, by diminishing the economic opportunities of ex-prisoners after they are released from prison. The U.S. penal system in the first years of the twenty-first century is thus significant not chiefly for its effects on crime but for its contribution to a novel, and distinctively American, system of social stratification.
When is Imprisonment Not a Punishment?: Immigrants and Immigration, Mark Dow
Imagine that you are being held in a prison or jail although you are not doing time for any crime. You’re dressed in an orange prison uniform and permitted to hug your wife briefly at the beginning and end of her visits. You might be taken in front of a judge and confronted by a prosecuting attorney, but you have no right to an attorney yourself. Or you’re sympathetic enough that a legal advocacy group has taken up your case, but you are moved from jail to jail, from state to state, in the middle of the night, without warning, so the lawyer you once had can’t find you anymore. Imagine you’ve been incarcerated like this for a week, or a month, or several months, or several years. And imagine that the law says you are not being punished. All of this is possible when you are a non-citizen “detainee,” held in “administrative detention” by the Bureau of Immigration and Customs Enforcement (ICE) in the Department of Homeland Security. Mark Dow will discuss the largely invisible immigration prison system that holds some 23,000 “detainees” each day – a number that might soon be doubled, depending on the outcome of current legislation.
Supermax as a Technology of Punishment, Lorna A. Rhodes
Supermax prisons are a technology of control specifically designed to separate prisoners from the general prison population and to isolate them from one another. Subsumed within the larger architectural and management strategies of supermax are a number of associated technologies such as electric shields, taser guns, special door designs, and computerized operation and surveillance programs. These technologies of punishment achieve near-complete domination over prisoners’ daily lives, producing an extreme form of exclusion that represents an extension and intensification of mass incarceration. This paper examines some of the elements shaping supermax technologies, such as the influence of behaviorism, correctional industry marketing, and a penal ideology of individualism and “choice.” It concludes with a discussion of the harmful effects on prisoners, and raises questions about the larger consequences of the drive toward total control.
SESSION V: CONSEQUENCES OF A CARCERAL STATE
The Social Effects of Imprisonment: A Labor Market Perspective, David Weiman
Criminologists have clearly shown the centrality of the labor market for ex-offenders returning to and reentering their families and communities. The pathway from crime and future prison spells, what criminologists call desistance, depends on employment, specifically finding and holding a good job. By contrast, the probability of recidivism—cycling out of and back into prison—varies inversely with an individual’s labor market opportunities, measured by both employment and real earnings.
Drawing on published and ongoing research, I examine the critical question of how released prisoners have fared in the labor market with a focus on how a prison record affects their labor market opportunities. Where appropriate, I present evidence testing the hypothesis that a criminal justice record reinforces the steepening barriers to employment at least in formal labor markets for those on the socioeconomic margin. Although the results may not be definitive (for reasons briefly discussed), they suggest that less educated, skilled individuals with a criminal record will experience lower employment rates and/or earnings than their “clean” peers. Given the employment-crime link, the evidence implies that ex-offenders face significant risks of recidivism and hence future prison spells, notably when they are released into weaker labor markets. In other words, they are more likely to fall into a vicious cycle, a revolving door of prison release-crime-incarceration.
This labor market perspective does not discount the public safety benefits from an expanded criminal justice system, but instead warrants a fuller accounting of its costs and so net returns. Standard benefit-cost analyses focus on the benefits side of the equation — the reductions in crime rates because of incapacitation and deterrent effects of tougher criminal sanctions. They measure the costs simply in terms of the fiscal expenditures on building and operating more prisons as opposed to other public goods. If mass incarceration yields significant, unintended individual and social costs, as current and research suggests, then the standard accounting is biased in favor of imprisonment as opposed to alternative sanctions.
The Impacts of Incarceration on Public Safety, Todd Clear
This paper will explore the evidence for the proposition: "high levels of incarceration, concentrated in poor communities, causes crime to increase." It will present and explain a model of the incarceration-crime relationship that includes the negative impact of incarceration on crime (incapacitation, primarily) balanced against the positive impact, through the way incarceration destabilizes private and parochial forms of social control. It will conclude with a series of recommendations about how to deal with the problem.
Hitting Home: How Perpetual Punishment Hurts Families, Elizabeth Gaynes
Elizabeth Gaynes will discuss the impact of incarceration on the family, including minor children. The current carceral state represents the greatest separation of families since the end of chattel slavery. More than 10 million American children have experienced the impact of parental arrest and incarceration. Children and families experience trauma, stigma, shame, guilt and fear when a loved one goes to prison, yet they are rarely considered in policies regarding punishment or incarceration. Considering the evidence that family ties and pro-social networks have a significant impact on success following release, the interruption of social networks and family relationships is clearly counter-productive, yet the desire to punish far exceeds the desire to transform those whom we punish. The American system of punishment, including building prisons far from people's homes and severely restricting contact with children and families, suggests a willingness to have families pay the price for an individual's crime. In this presentation, I will discuss what the price is, why issues related to race, ethnicity and religion are profoundly implicated, and - of course - another way of thinking about families and children as the access to a new paradigm.
Incarceration and Reentry Reforms in an Era of Robust Democracy, Jeremy Travis
A critical dimension in the changes in American criminal justice policy over the past generation has been the increased influence of the legislative branch, at the expense of the judicial and executive branches of government. This new reality helps explain the current level of imprisonment in America, which continues to increase despite record low levels of crime. In thinking about future penal policies, the new reality of legislative dominance also limits the potential reach of those reforms. Ironically, because of the emergence of a new "reentry movement" that has developed broad political support, this new reality might simultaneously open other avenues for justice reform advocacy.