The Role of Prisons in a Socialist Future

The Role of Prisons in a Socialist Future or: The Incorrigible Ethos of Incarceration[1]

Mechthild Nagel

PRISON

The ‘Abyss’ is their word for time,

Time in prison – any kind of prison

They can see time as a devouring man,

A vortex that sucks away their lives;

But in that vision they assert themselves

Seeing the abyss and themselves as separate:

So they take on, once more, human dignity.

- Dennis Brutus

Introduction

What lessons can be learnt from a critique of prisons for the future of a society that is socialist, radically egalitarian and espouses enhanced ideas of liberty? This paper seeks to give a sketch of how to procure social peace without a punitive corrections apparatus. I wish to highlight the visionary efforts of abolitionists and organizations, which are already on the way to creating a society—without prisons or even penal codes. This indeed is a monumental utopian dream at a juncture, when in many parts of the world it is still controversial to decriminalize drug use and addiction or to legalize sex work.

In this article I attempt to do the impossible. I will ask what is the end or justification of punishment, and if punishment—even where it is proportional to the offence, just, etc.—does not serve its expressed purpose, namely to end crime, could we imagine to end punishment altogether? While I will focus on the US prison system, I also wish to take a transnational look at the practices of imprisonment. The focus of the paper will be an abolitionist approach—i.e. eliminating prisons and existing penal codes. Abolitionism, whether it is conceived as a gradual or radical approach, seems to me to be the only viable way of conceptualizing a just, socialist society. It is time to move beyond the medieval edict “Carcer enim ad continendos hominess non ad puniendos haberi debet –prisons exist only in order to keep men, not to punish them.” Prisons indeed already punish psychologically the men, women, and children that they contain and “incapacitate”, because the offenders are physically removed from their social and family networks and employment. This is also true for jails, which hold pre-trial detainees.

While criminologists tend to highlight the vexing problems of deviance and recidivism, it is worth pointing out the brutalizing effects of prisons on its wardens and guards. Frantz Fanon’s analysis of the traumatization experienced by French soldiers and torturers in the Algerian colonial prison, Zimbardo’s simulation of prison life with Stanford students, and Milgram’s experiment with subjects who choose to inflict pain, all have documented the banality of sadistic behavior in carceral and colonial contexts.[2] I use the term banality expressly to indicate that it does not take much effort to convince ordinary people to participate in practices against others which clearly smack of dehumanization, if not torture.

Capitalist Ideology on Crime and Punishment

It is fairly uncontroversial to claim that in a capitalist society prisons function as the reservoir for the lumpenproletariat, i.e. for those who are chronically under- and unemployed or those who work in illicit trades (Rusche et al. 1939/1968). During war times and decreasing unemployment, incarceration rates usually drop, and during times of relative stability, yet rising unemployment, incarceration rates rise steadily—and disguise official unemployment figures (Vogel 2003). Yet, as Richard Vogel points out in his case study on US imprisonment, beginning with the Reagan administration both military budgets and correctional budgets have risen substantially, no matter whether the US is at war against another country or not. Given the recent extensive military campaigns directed against Afghanistan and Iraq, the US government can ill afford this stealth logic, since it is increasingly unable to recruit a professional army from the working class with some seven million adult citizens under correctional control (prison, parole and probation) and hundreds of thousands of its youth in disciplinary/correctional facilities.

I am not suggesting that criminal behavior is linked to working class status, even though the US courts seem to favor prosecuting “street crimes” rather than white collar offenses. Furthermore, police and prosecutors tend to single out citizens who are high school dropouts, barely literate and citizens who don’t have regular (or legal) employment or housing. The recent Hollywood film Traffic (2000) captures the partial judicial logic of exempting white suburbia’s drug addiction and trafficking while reigning in urban-and-Black drug trades.

I will focus on the United States’ penal system for a) originating the modern prison institution and b) being emblematic of the crisis of the penal system worldwide. The United States is home to the largest “penal colony” in the world, at the same time that it proclaims to be the “freest” country in the world. Curiously, most Americans do not see this glaring contradiction (even when informed about current US penal statistics); similarly, Americans refuse to see that gunshot diplomacy and carpet bombing do not produce capitalist democracy and peace in targeted countries, as witnessed in the ghastly imperial wars against Vietnam, Iraq and Afghanistan, to name a few. Basic international covenants on prisoners’ human rights are routinely violated at CIA sponsored prison camps around the world—the treatment of “enemy combatants at Guantánamo Bay, Cuba or at Iraq’s Abu Ghraib’s prison being no exception. At the “home front” Nixon’s “war against drugs” took a vicious and deliberate turn of a “war against poor people,” selected on the basis of certain racial identities. Much of this paper will focus on the racist capitalist underpinning of the carceral system.

In order to understand the ideological underpinnings of American imprisonment, I wish to offer a brief historical review into the development of the modern prison system, conceived in the “New World.”

Justice as Vengeance or Reforming Punishment?

The Oxford History of Prisons introduces the modern conception of prisons with a telling title: “The Failure of Reform” (Rotman 1995). As soon as prisons were implemented by the reform minded Quakers in the American correctional experiment, they were mired in controversy. Prison cells, modeled after monastical cells, were supposed to reform the fallen person, not torture her, nor rob her of her humanity, nor instill more criminal appetite in her. Penitentiary institutions started with such exalted promise, imbued with the spirit of enlightenment: “From . . . the gruesome public execution of Damiens in 1757, through the Norwegian Parliamentary invention in 1815 of a tariff converting branding and cutting off limbs into terms of imprisonment—ten years for a hand—does it not exemplify reduction in pain?” (Christie 1981, 9).

With the rise of the industrial revolution, capitalists sought a cheap, flexible labor pool. The prototype for modern factories were the workhouses in the American penitentiaries, filled with impoverished peasants, free Blacks, and recent European immigrants. Prisons became known as “crime schools” at the same time as policy makers quibbled over the virtues of the “separate” Pennsylvania System vis-à-vis the “silent” Auburn System—solitary confinement versus factory-style mass confinement. Both used the Bible as a tool of submission and correction—to little avail. In the end the Auburn System, where prisoners worked silently side by side, became the preferred model, because prisoners are ‘productive’ and work for their keep. Some prisons, which operated farms, even ‘exported’ food to the local community and ran the penitentiary institution at a profit.[3] According to the separate system, the prisoner was in an isolation cell equipped only with the Bible so that she would transform into a docile and reformed penitent; in reality, she usually developed psychopathic and paranoid tendencies and even reoffended once released. Yet the specter of the Pennsylvania System looms large vis-à-vis the “incorrigible” or “dangerous” prisoner, who is confined in the modern variant of the monastic cell: the supermax isolation room where the incarcerated suffers from almost total sensory deprivation (cf. Rhodes 2004). The Quaker reformers, who championed the Separate System, realized that instead of finding the panacea for ending the need for punishment, they had created a revolving door policy and that repeat offenders were the rule, rather than the aberration. In the last two hundred years, progressive reforms have always been at odds with the demands of security and “custody prevailed over treatment” (Rotman 1995, 164). Today, the Quakers are providing leadership in the prison abolition movement, in particular in the United States and Canada.

What have we learnt from this sordid history? The country that invented modern corrections, via the penitentiary model, is the leading incarcerator in the world—and among the leading exporters of private prisons (Sudbury 2000, W. Martin 2006). The U.S. incarcerates 25 percent of the world’s prisoners, and after the events of September 11, 2001, we can expect that more men (in particular) will disappear into Guantánamo Bay, U.S. federal detention centers, as well as into federal and state prisons. In 2003, over fifty million US residents and citizens had criminal records, and currently over six million people are in the supervisory system of corrections, parole and probation. Many activists and radical philosophers have noted the intense racial discrimination that exists in the judicial apparatus, often dubbed “criminal injustice” (Rosenblatt 1997). The zeal of politicians and prosecutors to practice “mass incarceration” (Mauer) is only explainable according to a logic of vengeance (retribution), not deterrence or rehabilitation—to invoke some classical theories of punishment (Honderich 1971). It is beyond the scope of this paper to discuss these theories in detail. However, I wish to point out the general claim that the purpose of punishment, according to Honderich (1971) and Christie (1982), is to inflict suffering. Yet, is suffering necessary? Honderich comes to this utilitarian conclusion: “[A]cceptable practices must prevent offences at the lowest possible cost of distress, and certainly not by causing more distress than would occur without them. Furthermore, they must not themselves give rise to excessive inequality, and must secure that more equality or less inequality obtains than would be obtain in their absence”(189, Honderich’s emphasis).

Punishment meted out in proportionality to the offense has its theoretical merits, i.e. that the offender might be put on notice to accept the punishment, repent his crime and refrain from inflicting further suffering upon others. However, I maintain that this “just desert,” utilitarian principle is still quite crude; Honderich’s advocacy for “acceptable” practices of inflicting suffering still operates from a model of revenge; the offender must literally feel what it is like to be a victim, i.e. feel distress, in order to learn his lesson. Theories of punishment often fail to explain other social and economic factors that drive imprisonment in societies governed by a capitalist mode of production. Honderich’s emphasis on equality is therefore quite abstract. He cannot “wish away” that the utilitarian pursuit of just punishment is practically hampered by discriminatory policing, vindictive judicial verdicts and coerced plea-bargains; the socially displaced and dispossessed bear the brunt of punishment and discipline.

I contend that theories of punishment do not give us tools to understand the economic underpinnings of the carceral system because they focus on the faults of the individual under scrutiny or on particular types of offenses, rather than on institutions and systemic discrimination. The theory of rehabilitation seems to hold out the most promise, since it argues for mercy rather than revenge for the individual offender. I shall offer a critique of this theory of punishment below. Prison critic and activist Angela Davis understands the importance of looking at the carceral system from a macroscopic perspective. She writes, “[t]he prison has become a black hole into which the detritus of contemporary capitalism is deposited. Mass imprisonment generates profits as it devours social wealth, and thus it tends to reproduce the very conditions that lead people to prison” (2003, 16-17). A groundbreaking New York Times study (December 2003) of workers’ deaths reveals the deep seated refusal of law enforcement to prosecute CEOs, even in the most egregious cases of deaths after OSHA issued safety warnings.[4] Capitalist repeat offenders, Enron executives not withstanding, tend to get rewarded with more stock options rather than facing fines or long prison terms. If capitalists were sent to prison en masse, surely we wouldn’t have to wait for a socialist project to reconceptualize justice. The New York Times study reveals that criminal justice in a capitalist system is indeed capitalist “justice.” Corporate crime is reclassified as regrettable negligence, committed by none; it is not newsworthy, even if scores of workers are maimed and killed (cf. Mokhiber 1989); while street crime by indigent folks is vilified in the evening news and is prosecuted zealously.

Prisons, as conceived in capitalist countries, beginning with the debtor’s jails, houses of discipline (Zuchthäuser), and penitentiaries, have utterly failed to live up to their cherished ideals of social readjustment and deterrence (cf. Foucault 1977). In fact, I have come to think—perhaps due to my experiences of teaching in prisons—that despite a juridical, philosophical, and sociological emphasis on four punitive modalities, namely, incapacitation, rehabilitation, deterrence and retribution, these nuanced theoretical approaches can be reduced to one in practice: vengeance. A judge intoning at sentencing of a battered woman defendant, “you must do time for killing your boyfriend”—even when the evidence points to self-defense (cf. Nagel 2001), uses justice as vengeance, just as he would do by condemning a petty drug dealer to ‘fifteen to life’ imprisonment, exacting a “just desert” ideology. Rehabilitation has the greatest promise to stray from a vengeance motive, but the tenor of punishment is still the main modus operandi for the offense of having aggrieved persons and/or property. In the following sections, I shall argue that in a capitalist system, rehabilitation is a vain project given that the social, economic structural problems are not being minimized or eliminated which set up the person for prison, or “life on the installment plan.” Restoring the individual to a properly adjusted possessive individual rather than maintaining a deviant possessive trait seems an illusory task, at best. The US prison experiment also has a racial underpinning, and the “justice as vengeance” motif surfaces, oddly enough, in a constitutional proscription of slavery.

Prisoners as Slaves of the State

The birth of the modern prison in the USA cannot be separated from the other institution of dehumanization, slavery. During the colonial period, punitive measures against the “giddy multitude” have been differentiated by race and ethnicity; runaway Blacks receiving the harsher sentences than rebellious indentured whites—judgments against the participants of Bacon’s rebellion[5] serve as a case in point (Takaki 1993). The clearest linkage of the carceral regime and slavery perhaps is the 13^th Amendment to the US constitution, also known for the abolition of slavery. “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party has been duly convicted, shall exist within the United States, or any place subject to their jurisdiction” (emphasis mine). As Angela Davis, Joy James, and Assata Shakur (who herself is a fugitive of U.S. “justice” and enjoys asylum in Cuba), among others, have noted, this reconstruction amendment actually codifies slavery in prisons after 1865: it set slaves free from private bondage at the same time that it convicts citizens as slaves of the state when found guilty of a crime. This “abolition” (sic) amendment was a concession to Southern slaveholders who violently opposed complete abolition of slavery and involuntary servitude. So it was no accident that Black Codes were established all over the South, which continued the institution of slavery under a new name. Freed Blacks were charged for offenses, which no white person could commit and received long sentences with a punitive work assignment, also known as the contract lease system. Most prisoners sentenced to ten years hard labor did not survive their prison term (Oshinsky 1996).

A century later, imprisoned poet Shaka N’Zinga (2000) describes prison as “the slave ship that doesn’t move.” Jalil Muntaquim (2003) calls attention to the use of the 13^th Amendment as a tool to oppress POWs and political prisoners who wage an anti-colonial and anti-racist fight against the state (54). Militant white race traitors have faced long prison sentences or even the death penalty for defying the racial caste code.[6]

Tiyo Attallah Salah-El, an imprisoned intellectual and lifer in a Pennsylvania prison, notes that the abolition clause was not the first to proscribe citizenship upon African Americans.

With the Dred Scott landmark case the Supreme Court had written two new rules into the fundamental law of the nation: first, that no Black person could be a U.S. citizen or even a state citizen “within the meaning of the Constitution;” and second that Congress had no power to prohibit slavery in the territories, and that accordingly all legislation embodying such prohibition, including the Missouri Compromise was unconstitutional. … The three principal subjects with which Taney dealt at length in his opinion were: (1) the black race generally and free Blacks in particular; (2) the institution of slavery; and (3) the territorial system. If you look closely you will see that of these the first is not mentioned at all in the Constitution; the second is referred to in three separate passages, but never by name, and the third is treated in one brief and ambiguous clause. The textual basis for constitutional interpretation was therefore meager. As the Bard of Avon stated, “A lot of Ado About Nothing” (and I will add, a lot of racist bullshit!) (Salah-El 2003).

Legal scholar Paula Johnson (2003) also points out the tortured logic of the slave codes: Supreme Court judge Roger Taney, author of the leading opinion in the infamous Dred Scott decision, writes with respect to a slave woman who was caught stealing a letter: “He [sic] is a person, and also a property. As property, the rights of [the] owner are entitled to the protections of the law. As a person, he is bound to obey the law, and may like any other person, be punished if he offends it” (Taney, cited in Johnson 2003, 22). The notion of property is recycled into the prison codex. U.S. prisoner Joyce Ann Brown finds herself written up for “destroying state property” when she refuses to take her meal with others at the chow hall (Johnson, 154).[7] Many prisoners have documented their status as slaves of the state—even decades after the Virginia ruling in Ruffin (1871), when Woody Ruffin’s appeal of the death penalty on procedural grounds was denied because the court considered him “a slave of the state” and subject to “civil death” (quoted in Rotman, 175). In utilizing the Ruffin decision, courts have denied prisoners’ civil rights, such as suffrage and access to collective bargaining.

No other nation-state went as far as the US in using the 1926 League of Nations Anti-slavery Convention to make involuntary servitude the explicit law of the land. In a reservation, the US quotes verbatim the language of the 13^th Amendment, in order to preserve its right to enslave those who have forfeited their humanity due to the nature of their offense.

Subject to the reservation that the Government of the United States, adhering to its policy of opposition to forced or compulsory labour except as punishment for crime of which the person concerned has been duly convicted, adheres to the Convention except as to the first subdivision of the second paragraph of Article 5, which reads as follows: ‘(I) Subject to the transitional provisions laid down in paragraph (2) below, compulsory or forced labour may only be exacted for public purposes (March 211929a)’ (emphasis added).

Not only is slavery legal in US penal institutions, contracting out slave labor also is perfectly acceptable, under US law, whereas international law finds both instances suspect, and the UN charter encourages member states to abide by its abolitionist stance. Forced labor exacted for private purposes has been documented vividly by Oshinsky’s study Worse than Slavery (1996), where he documents that after 1865, Black Southern convicts procured by private plantation holders and industry died at a faster rate than slaves prior to 1865.

I highlight the connections of prisons and slavery in the American justice system because a) such connection tends to be avoided in discussions about theories of punishment; and b) it is difficult to even begin a discussion about the efficacy of punishment if the slaveholders’ exception clause is not disregarded. How can it be possible to conceive of reforms within a system that contends that prisoners have no rights and are considered property of the state?

International Comparisons

Perhaps defenders of the view that prison can rehabilitate may turn to other capitalist justice regimes for encouraging best practices. British judge Lord Wilberforce opines “Under English law a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication” (Raymond v. Honey, 1983:1; quoted in Coyle 2001, 743). Similarly, the German penal law code attempts to minimize prisons as punishment, and it notes that prison life should resemble life in liberty:

(a) Life in prison is to be made as similar as possible to general living conditions;

(b) The harmful effects of confinement are to be counteracted; and

(c) The execution of the sentence is to be oriented towards the eventual reintegration of the prisoner in a free society. (Prison Law, section 3; quoted in Dünkel, 311)

In a recent study, the Canadian Corrections Association reports that giving prisoners keys to their own prison cells fosters better attitudes and facilitates the reintegration process of ex-prisoners (cf. Broken Chains).[8]

Yet, many reform efforts aimed at enhancing the dignity of the prisoner have been stopped and undermined by zealous wardens and guards, who prefer disciplinary rule and a tight security apparatus to lax standards of prisoners’ self-governance. Thus, the reality is of course far from the lofty language of the lawmakers and reformers. In addition, several well publicized sex-crimes against children in European countries have raised a public desire for long term sentences and even a return to capital punishment.

For the first time, “tough on crime” judges have sent more people to prisons, causing some German prisons to be filled beyond capacity, and overcrowding clearly violates the first two principles stated above. German studies have shown that even short term incarceration affects negatively the offender, who is more likely to re-offend than those offenders sentenced to probation (Mauer 2003). In the fall of 2003, Minister of Justice Zypries proposed a sweeping reform, which uses the tool of de-carceration, for offenders, who would be sanctioned to fines; in the past, if they failed to pay, they were imprisoned. Her key proposal is to punish offenders with community service and she justifies it mostly on utilitarian grounds, curbing overcrowding and saving scarce public resources (Averesch et al. 2003). She is silent on issues of proportionality and rehabilitation or reintegration. Even in the US, there are hopeful signs that “lockdown America” (cf. Parenti) may be fiscally impractical. Several states, facing severe budget crises, have looked at geriatric release and are leaning towards judicial discretion and leniency vis-à-vis truth-in-sentencing, three strikes laws, and mandatory minimum sentences (Vera Report, 2003).

To make sense of this contemporary experience, we must start with the fundamental question: What is the end of punishment?

A Critical Perspective on Criminal Law

The Law Commission of Canada gives the following compelling definition of criminal justice:

Criminal law is a punitive response to a perceived problem. … Criminal law both universalizes the problem and individualizes its causes. It universalizes the problem in the sense that it recognizes the claim of the victim as valid and sufficient enough to demand a guarantee of protection by the state. It individualizes the problem by making individuals (mainly individual offenders) responsible for the problem (Law Commission, 11).

Indeed, the ideology of the police and justice apparatus of all nation-states seems to take victim’s rights into consideration and seems to be driven by fairness and impartiality. In reality, the claim of the victim will be handled differently by the state, depending on the ontological status of the victim. The social standing of the victim will come into play when prosecution is sought. In the US, if the victim was white and was murdered, her assailant is likely to receive harsh sentences; if the offender(s) are Black, they will also be exploited and condemned by the mass media. Two of the many infamous anti Black “trials” of the last fifteen years are the Willie Horton Republican media advertisements during the Dukakis-Bush presidential campaign (which effectively paved the way for the Bush, Sr. presidency) and the Central Park Jogger “gang rape” trial—ten years later, the young men were found innocent and a single white male serial rapist was found guilty (Williams 2002).[9] Barry Scheck’s Innocence Project has capitalized on DNA evidence to exonerate scores of prisoners, many of them African American men. Illinois’ Governor Ryan went so far to commute all death sentences after a discovery that the system was fundamentally flawed on racial, economic and geographic grounds; scores of innocent Black men were released from death row. The fate of the Scottsboro Boys, who served decades of time only to be released after a massive grassroots campaign, spearheaded by the Communist Party USA, to prove their innocence of raping two white women, is a grim reminder that police discretion and whites’ racial fears of Black men play a huge rule in (extra)legal condemnation of innocent people (cf. also Davis 1981).

On the other hand, the status of the victim is open to question, especially if she is Black. She will not necessarily see her claims defended as valid and sufficient; here, the trials and tribulations of Tawana Brawley[10] come to mind. With respect to sexual offenses, the defense has often cross-examined the victim in such a way that she probably brought the crime onto herself: In a New Bedford gang rape case, the defense asked the victim “If you’re living with a man, what are you doing running around the streets getting raped?” This accusation is loaded with assumptions about domesticity and “the streets”—the bar where the rape took place serves as an extension of the street (Butler 1992, 18-19).

Lynch justice and a rape script haunt the American criminal justice system profoundly. Sure enough, the victim’s grievances seem to be universalizable, but race, caste/class, geographic location, gender, sexuality, cognitive ability, and age are factors, which influence the police and prosecution’s determination “to make a case.” This practice of selective prosecution and punishment appears to be true mostly at an anecdotal level: self-report studies on recreational drug use show no difference in level of drug consumption among different racial and ethnic groups; yet, almost all drug offenders prosecuted under the draconian New York State’s Rockefeller Drug Laws are Black and Latino.[11]

Another study introduced to the US Supreme Court focuses on racist discrimination in jury trials. The Baldus Study gives penal critics astonishing empirical evidence for launching an ideology critique of both aspects of criminal law, outlined by the Canadian commission. Prof. Baldus’ findings were used in context of raising the fairness of application of death sentences.

(1) defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks; (2) six of every eleven defendants convicted of killing a white person would not have received the death sentence if their victim had been black; and (3) cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim (McCleskey v. Kemp, 481 U.S. 279 (1987); quoted in Abu-Jamal 1995, 93).

The study makes clear that (1) “the problem” will be individualized in death cases, because the race of the victim and the race of the offender play a crucial role in the decision of the prosecution of seeking the death penalty, particularly, in cases involving white victims and Black defendants. (2) It is rarely the case that a Black defendant accused of killing another Black person will receive the death penalty. Perversely, “the causes of the problem” are also universalizable, in the sense that the problem is made to disappear, akin to the Georgia v. State (1859), “the crime of rape does not exist in this State between Africans” (Johnson 2003, 22). In addition, Black defendants seldom have the opportunity to face a jury of their peers, even in capital cases. How did the Supreme Court respond to this evidence of a paradoxical reversal of universalization and individuation? Very tellingly, the Supreme Court dismissed the Baldus findings in McCleskey v. Kemp (1987). In an emotional outburst the Court opines: “McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system” (cited in Abu-Jamal, 94).

Anybody who has studied criminal law procedures, especially juvenile justice, and who has worked with women offenders, knows that the offender is also a victim.[12] Psychological studies of male prisoners sentenced for murder or manslaughter have revealed a high correlation of enduring a violent, abusive childhood, including being shaken as a baby, and violent behavior of the youth who often lacks the emotion of empathy. However, whether or not the state accepts the offender as a victim depends on race and paternalistic attitudes. This point is made over and over again in the anthology Inner Lives, where incarcerated African American women discuss racial discriminatory practices: white women with the same offense get a lesser sentence or probation/counseling, whereas Black women do hard time. The state thinks that the white working class woman has a “drug problem” (i.e. she is a victim) and must be treated for it, whereas the Black working class woman is portrayed as “drug dealer” and must be punished to 15 years to life, even if her only crime is holding drugs for her boyfriend. If a youth offender is middle class and white, he often is referred to counseling and social services rather than “reform school” or shock treatment camps, the latter will inevitably lead to a prison term in adult men facilities (cf. Mauer 2001). As Angela Davis (2003) argues, whole populations and communities are being criminalized, under the ruse of the War on Drugs, or more recently, War on Terrorism. In the US, such target groups are always people of color, particularly, youth of color: “Unless the current structures of violence are eliminated from schools in impoverished communities of color—including the presence of armed security guards and police—and unless schools become places that encourage the joy of learning, these schools will remain the major conduits to prisons” (Davis 2003, 108).

Who receives imprisonment and harsh sentences? A recent sociological study of the life course and risk of imprisonment suggests that economic class coupled with educational attainment produced greater inequality of who is incarcerated. Black women are also arrested and booked for drug related crimes at disproportionate levels (Davis 2003). High school dropouts of African descent are at a great risk of facing imprisonment, in fact some 60 percent of men born 1965-69 (Pettit et al. 2004, 161). Racial patterns of incarceration, on the other hand, have remained at a constant level in the 1990s. Angela Davis notes correctly that schools do not provide safe and supportive learning environments, such that young black men drop out and turn to illicit activities with the expectation to end up in jail for their offenses. Pettit and Western (2004) state that “recent birth cohorts of black men are more likely to have prison records (22.4 percent) than military records (17.4 percent) or bachelor’s degrees (12.5 percent)” (164).

In a post-industrial economy, where unionized manufacture jobs have moved outside the United States to maquiladora plants around the world, working class people of color and those dubbed “social junk” have been increasingly policed and controlled by a private and publicly funded and coordinated security apparatus (Parenti, 1999). Cities have lost their job base and moved service-oriented jobs to the white suburbs; metropolitan cities harbor unpoliced sweatshops with undocumented slave-laborers. Many inner cities have youth unemployment of over seventy percent so that neighborhood or national gangs become the major source of identification for dropout youth.

The major goal of criminal justice in a capitalist society, especially the United States, seems to be a containment strategy of the “social junk” or lumpenproletariat; they may be corralled into the states’ and federal prisons where white working class men (and some women) receive relative job security and decent pension plans. This is certainly true for central New York where the manufacturing base has been completely eroded—replaced by a burgeoning prison industry which houses men from seven boroughs of New York City (cf. Nagel 2002a).

Mobilizing for a critique of the system

I teach courses on discrimination and often include prison literature (e.g. Mumia Abu-Jamal, Jalil Muntaquim, and Joy James). Their radical analyses on the US prison system confronts students with their own perceptions about imprisonment. One of the white male students writes in his research paper on prisons: “A policy that should be changed is the amount of education that they can receive in prison. They should be able to learn on their own but not be given a college education at the taxpayers' expense. I have to bust my butt to pay for my education and they have it given to them, that isn't right. We are educating the people of society. We should educate the people who want to learn to make a contribution to society.”

It should be noted that this opinion was written long after college programs in US prisons were defunded in the 1994 Omnibus Crime Bill. Only a handful programs have remained, funded by private corporations or private colleges. The student’s apparent retributivist sentiment is familiar to volunteers who teach college courses in US state prisons because guards very quickly complain about the free, undeserved education that prisoners receive. Often, they seem to lament their own lack of college education, and some even ask to sit in the classes for prisoners. However, the student’s grievance is important in so far as all members of society should be able to benefit from a free college education.

At a time, when many more people find themselves pulled into the tentacles of the surveillance system of criminal justice, it still seems difficult for the majority of Americans to rethink the system and favor more innovative reform approaches. Even family members of incarcerated people often adopt an attitude of social discipline, i.e. that the uncle, brother, or aunt should “pay for their crime.” They may underestimate the social, economic ramifications that also have a dampening effect on one’s choices, sense of self worth and civic responsibility, and chime in the choir of blaming the victim. As one African American prisoner explained to me, “I saw that my dad with his B.A. could only find a menial job, so I went into the drug trade because it promised a good living.” Jonathan Kozol’s apt term of “savage inequalities” underscores the marginalization experienced by many poor communities of color and the desperate acts that may follow from such experiences. Prison has become the biggest social welfare experiment of the government, and it is profoundly anti-family; it will foster negative sentiments of family members towards the incarcerated person; this is especially true for children of incarcerated mothers who themselves are more likely to go to prison. Donna Hubbard Spearman describes her situation in the following telling way: “We have the stigma of going back into a community where African American men are almost made martyrs and heroes when they come out of prison and go back into the community. But when we go back into our community, we are not only unfit people, now we’re unfit mothers, and it’s hard to trust us.” She likens prisons to slave plantations: “I felt very much like I was on a plantation many times when I was talking in a prison system to my counselors and others about being a mother again and about taking responsibility for my children” (Johnson, 203). Spearman often was pressured to give up her children for adoption, whereas white women prisoners, according to her, were never asked to consider adoption.

It is difficult to mobilize against prisons in the US, when its ideological underpinnings are not clearly understood, e.g. of its economic and racial dimensions, and where ex-convicts are stigmatized in their respective communities. Yet, some churches are beginning to question the “halls of shame,” as have youth of color (e.g., No More Prisons!) and a movement against the prison industrial complex, as powerfully displayed by Oakland students and Brooklyn students who walked out of classes and demanded “Education, not Incarceration!” The well-attended Critical Resistance conferences, have also begun to turn the tide. The International Conference on Penal Abolition (ICOPA) attracts activists and lawmakers from all over the world, including Africa and Latin America, to rally behind the notion that abolition of the current penal regime is a possibility.

However, nothing short of a World Social Forum is needed to tackle global incarceration practices and lay out visions of transformative justice models as deemed necessary in a socialist, egalitarian society. Pursuing Lenin’s dream of the withering away of the state, where, surely he meant its coercive institutions had to be relinquished first, we must boldly envision a society, indeed a global government, which takes seriously the abolition of rent, penal systems and a capitalist mode of production. A capitalist system is ill equipped to safeguard the sanctity of human needs and rights, whereas a radical and systematic redistribution of wealth is needed to address savage inequalities which all too often lead to lives of crime and despair. Redistribution of resources also requires that attention is paid to social welfare and public goods, such as universal health care; clean environment; free education; publicly owned media, etc. (Anton, et al, 2000).

Abolishing Prisons

Alternatives to incarceration and other reform models often universalize in a different, compelling way. They focus on community-based accountability. Such models have worked rather effectively in the context of spiritually grounded Sentencing Circles or Healing Lodges of Aboriginals in Canada. The measure of success is often discussed in terms of averting recidivism and pursuing reintegration of the offender into the community. In the US, various communities and cities have utilized aspects of sentencing or healing circles in community dispute resolution/ mediation circles. Some of the commonalities of these approaches are 1) getting conflicting parties to talk directly to each other; 2) focusing less on the individual offender than the social context of the situation; 3) forgiveness and healing. Interestingly, in such models, the notion of punishment is minimized and reconciliation is emphasized (Sullivan et al. 2001, Morris 1995).[13] One issue that is “restored” for the victim in such participatory, community-based circles is the sense of “owning the conflict” (Christie, 93). Her grievances are not relegated away to some representative body, which stages the conflict abstractly (through wigs, uniforms, guards in the court room, elevated seating for the judge, etc.). Importantly, these circles stay away from an adversarial approach. Both parties bring their own advocates and families to the circle and the focus is on finding a solution and not on winning the case. What is interesting is that the offense often reveals a deeper-seated conflict, say an intergenerational family feud, that involves more parties than the accused and the victim. Circles do a great service in contextualizing and historicizing the problem. Since nothing is to be “won,” there is no appeal to a higher instance. The circle is the final arbiter of the case and the people involved. Face-to-face conversation brings about meaningful visceral responses, which is encouraged rather than silenced, as in the traditional (sterile) court. It may even be the case that in the end both parties apologize to each other for the transgression.

The challenge of meting out justice is, in the words of Nils Christie (1982), “[i]nflict as little pain as possible. Look for alternatives to punishments, not only alternative punishments” (11). Christie also cautions that if one abolishes prisons, one should take pains not to turn towards a disciplinary society in which the Panopticon gaze is omnipresent (Christie, 86; Foucault 1977). In part, the state’s omnipresence has already been accomplished with the increased use of electronic surveillance of parolees. An alarm goes off once the person ventures into the proscribed area. In a post September 11 world, surveillance at a global scale (collecting gene data, banking accounts, gambling records, etc. of millions of unsuspecting, law-abiding people) has in part become the shocking reality for many subaltern selves, especially those who think they have no truck with terrorism—and it is interesting to note that a movie, Enemy of the State, has become the blue print for fantastic schemes by the state to root out animal liberationists, plowshare activists, constitutional lawyers and advocates of political prisoners, and the peace movement, broadly speaking (Dreyfuss 2003). Dreyfuss reports that the FBI has practically abandoned the hot pursuit of the drug war and organized crime in favor of the new war on terrorism (cf. also Parenti 2003).

In this climate of fear, we hear that giving up civil liberties is a small price to pay for overall improvement of security. Therefore, it is all the more important to press forward—not only with critiques of the capitalist penal system, but with abolitionist strategies, which focus on the redistribution of wealth, living wage jobs, meaningful education, clean air and water—in short, with substantive appeals made by a World Social Forum and other progressive venues.

Ending Punishment

Although abolitionists find ourselves outnumbered by advocates for reform of the penal institution and codes, we have to keep in mind, foremost, the abolition of all systems of oppression. A 1970s anti-prison collective highlights decarceration and excarceration strategies in A Handbook for Abolitionists, which are still relevant for the prison moratorium and abolitionist activists of today (Knopp et al. 1976). They also express their hope that “gradual reductions in the degree and type of punishments can, in the long range, lead toward the total elimination of sanctions” (101). They hold out the hope for universalizing compassion and understanding, rather than revenge. Yet, even restitution has had transformative impact on wrongdoers and wronged alike:

In Tucson, Arizona, the Pima County attorney has established a pretrial diversion program for first offense felons considered "eligible," utilizing a restitution and victim/offender confrontation procedure. The victim must consent to the diversion. In many cases this is achieved by bringing the victim and offender together with a facilitator, each relating his/her side of the story and negotiating the terms of understandings that will become the basis of the diversion arrangement.

One anecdote shows the potential of this procedure. A young man stole a color television set. At the diversion hearing he found that his victim was an invalid woman; the television set was one of her few links to the outside world. He was able to grasp the full consequences of his act-he had not just ripped off a T.V., he had materially hurt the quality of the woman's life. In addition to returning the T.V. set, he agreed to paint her house, mow her lawn and drive her to the doctor for her weekly checkup.

Many victims have entered into the process reluctantly, only to find themselves later offering to serve as volunteer probation officers for other offenders. After one year's operation, the program has been successful in all but nine of the 204 cases which it accepted. The project calculates its costs at $304 per case, compared to $1,566 required to process an average felony case (Knopp 1976)

Once offenders agree to the diversion model (with face-to-face interaction with the victim), they give up the possibility of appeal through the conventional judicial system. The example of the robber’s offense illustrates that the practice of restitution, i.e. of repairing the damage and doing community service beneficial to the victim, is more meaningful to the victimized woman than if had been punished to “doing time” for many years.[14]

A society, which enshrines greed and possessive individualism into its governance, as the appeal to the “pursuit of happiness” in the US constitutional preamble clearly indicates, has little to offer in terms of correcting behaviors of its citizens. As long as the social and economic conditions, such as unemployment, which bring forth violent, corrupt and other unwanted behaviors, are not addressed, it is nearly impossible to pursue the dream of rehabilitation. Prisoners often ask: ‘What rehabilitation? Try “habilitation,” first!’

A Florida philanthropist, Harris Rosen, has done just that: in 1993 he walked into a poor neighborhood, Tangelo Park, with a 25 percent high school drop out rate. He announced to a local community group that all high school graduates of Tangelo Park could attend a Florida public institute of their choice for free regardless of scholastic merit. Since that bold move which has cost him about $500,000 a year, the crime rate in that area has decreased 67 percent, whereas overall crime in Orange County has increased slightly. Importantly, only 6 percent of Tangelo Park students drop out of high school. Rosen also pays for the area’s preschool and kids are able to read by the time they enroll in elementary school which certainly did not happen before. Teens are now focused on school and getting good grades in order to enroll in the college of their choice (Basinger 2004). Of course, I am not suggesting that college education makes one automatically an upstanding citizen, but it certainly provides many with self-worth and opportunities, where the excitement or necessity of illicit street and gang life may no longer be an issue. Research of ex-prisoners who obtained a BA while incarcerated shows that they are far less likely to return to prison than those who did not get a higher education. Nothing short of a comprehensive socialist system, of state-supported free day care and a commitment to “cradle to post-graduate schooling” available to all is needed to tackle a meaningful habilitation program.

What is the role of punishment in a good society? Giving up punishment also means one has to give up on judgment of another human being altogether, because one wishes to stop the energy of separateness (i.e. anger, hatred, and rage), which fueled the offender’s actions. Judgments inspired by sentiments of retribution or deterrence accomplish nothing, because it feeds off the same energy of the offense committed (Walsch 2000, 42). This is an important reason why I wish to argue against the logic of revenge that is embedded in any form of punishment.

As Christie puts it poignantly, prisons ought to be called “pain-inflicting institutions” and judges, those “who deliver pain” (15-16). Clearly, a socialist society would shy away from inflicting pain deliberately. Unlike the judges in a Swedish study, who were found to pay more attention to the offense committed than to take pains to understand the offender’s personal and social circumstances (Bondeson 2002, 64), a socialist healing circle would provide a compassionate approach to the individuals and focus on the greater good for the community. Once social injustices are holistically addressed at the systemic and societal level, individual transgressions can be addressed in a radically different way. It requires an acceptance of an organic, spiritual worldview which affirms that everyone is connected to the other; in fact, the other qua other is sublated: the self discovers herself in communion with other selves. To transgress against another would really mean to hurt oneself. Acts of transgression will not be seen as “offenses” in need to be “punished,” but the person who is taken mis-steps is told about the consequences of such steps and it is left to him to see that he is not acting in accordance to the Whole; and he will then volunteer to take steps to correct his behavior. Punishment will then seem to be an absurd approach because if one is connected to all others, as Buddhists claim, then it would make little sense to hurt oneself even further: “It’s like stubbing one’s toe, then kicking twice as hard to retaliate” (Walsh, 151). This sounds of course hopelessly utopian, and perhaps we can only imagine a society, which lacks willful criminal activity, where heavy social sanctions exist.

However, surprisingly, in several postcolonial countries in Africa, individual responsibility is seen within the context of group-based liability. In Mali, for instance, crime is quite low, in part because people are clan-based. If a Mr. Diallo commits an offense (robbery, rape, etc.) against a member of another clan, e.g. Diabate, not only will he be fined, but so will every member of the Diallo clan and the restitution will be turned over to the elders of the Diabate clan. This will bring great shame onto him among Diallo members, and might brand him as being unmarriagable and untrustworthy. He has also soiled the good name of Diallo, a clan name with a long history of extraordinary political leaders. A Diallo member will therefore take great care to live a virtuous life and not upset the existing social order (Nagel 2002b). An important point here is that criminal offenses are treated as tort action (cf. Comaroff and Comaroff 2004). In the global North, we are reminded that prior to Christianization of Europe, adjudication of a variety of offenses used to be group-based and restricted to fines, in order to avoid war and feuds. With the Norman conquest of England (1066), the legal codes were permanently altered so that it was the individual sinner who transgressed against the king’s peace and had to face individualized punishment. Individual responsibility displaced group responsibility.[15] These cross-cultural and historical examples illustrate, I think, that another justice approach is conceivable of being implemented in the post-industrial global North. But first, such a radical approach would have to decenter individual responsibility, and it would have to put into relief a critique of the capitalist system with its implicit Christian malediction (or damnation) of the individual who erred against the state (a k a the king).

I am sympathetic to the spiritual approach of restorative justice, advocated by Sullivan and Tifft (2001). In their chapter “A Radical Perspective on Crime and Social Harm” they note the harm-based approach of conventional justice, driven by state and market interests and elites: “How ironic that when our collective response to harm seeks retribution for harms done, when it rewards people for relating to each other at a distance, and when it acts to thwart the needs-meeting of those denied voice, the human community puts itself to sleep” (140-41). Instead of hierarchical deserts-based and rights-based economies, they call for a “needs-based” economy, which eliminates personal and structural forms of violence. In order to create restorative communities, which foster compassion, nurture creativity, and educate people in justice literacy, one’s own needs, desires and actions will have to be changed. Feelings of superiority, detachment from others, and ideals of possessive individualism have to be replaced by sense of solidarity and ultimately, with the abandonment of the self (166). “At the highest level, this self is moved to live among others in a way that it neither seeks something in return for its efforts nor even thinks in this reciprocal or accounting manner” (167). Abandonment of the ego encourages the self to transcend judgments, which are (often) merciless reactions to fear and guilt.

We can learn our lessons from communally based practices in the 19^th Century Oneida community, Dineh Peacemaking circles, and Kpelle Moot adjudications in Liberia which do not dwell on guilt and innocence but rather on restoring harmony in the community. Conflict resolution may be brought forth by compromise (Knopp et al. 1976, Nagel 2002b). It might seem just as utopian to us to rid ourselves of prisons and punishment, as it might have been for radical abolitionists to free US society of chattel slavery during the 19^th Century.

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