Law in Contemporary Society

Reconsidering the Assumptions of the United States Penal System

-- By SamanthaWilliams - 19 Feb 2008


Several dichotomies are useful in characterizing the function(s) of incarceration within the United States penal system. There is a distinction and separation between civil society and prison, between the citizen and the criminal, between free and unfree persons.

  • This is bombastic, but hardly compelling. Social analysis of any sophistication would begin by observing that these aren't dichotomies, but highly interwoven categorizations neither mutually exclusive nor exhaustive. Taking this starting point, both in tone and substance, acts as a very strong filter: only the reader who is disposed to agree with you gets to the third sentence. For purposes such as ours, that's a serious defect.

What does it mean, though, when other dichotomies emerge that appear wholly inconsistent with the supposed democratic ideals of the United States?

  • Use of rhetorical questions is almost always a bad idea, because the reader leaves the flow of your argument and goes off in a direction of her own. Where, as here, the question is windy and imprecise, the effect is particularly undesirable.

The state repeatedly commits acts of violence and other crimes against the imprisoned. These actions establish an opposition between order and justice. Although clearly immoral, the state can maintain such a stance by reinforcing those dichotomies that distinguish its constituency from those who “must” be imprisoned. But what happens when these dichotomies break down? What if the prisoner no longer seems criminal and civil society no longer a free space? Questioning these constructed oppositions challenges not only the effectiveness and even legitimacy of our penal system, but also of larger US society.

  • But for all the heavy rhetorical artillery enlisted in its support, the proposition, put forward with so much sweat and bellowing, is a near-tautology: a government that uses force illegitimately seems illegitimate, and anyone who believes the jails are full of political prisoners is likely to be critical of the society as well as the policemen.

Free Citizens versus Criminals

United States society is largely based on the idea that the system that governs it is beneficial to its members. This principle underlies the concept of the American Dream itself.

  • Unlike the Kazakh Dream, the Romanian Dream, or the Danish Dream? Is there a society based on the idea that the system is harmful to its members? What this essay didn't get is skeptical editing. Editing yourself doesn't mean thumping yourself on the back for what a successful partisan you are. Editors, whether internal or external, are there to ask hard questions, to take the other side, to read with an eye on the lookout for weak thinking, overblown rhetoric, and sloppy self-lauding. If you write like the Socialist Workers' Party, you need to edit like the National Review.

As a result, free citizens have been conditioned to believe that those who rebel against the system must be policed and imprisoned; in order to keep us free, we must be protected against the criminal, the disloyal, even the person of suspect phenotype. Civil society has also come to accept, and perhaps even expect, that in order to maintain law and order, the loyal, law-abiding person must sometimes be sacrificed to get to the rebel. This policing mechanism also acts to display the state’s power over an entire space. This demonstration reinforces the free person’s fear of the policed or imprisoned individual and willingness to abandon him, since any kind of association with him could threaten the free citizen’s life. However, not all prisoners are criminal. Even those who break the law may not do so out of self-interest, but in the interest of fighting oppression expressed either through that law or its administration. It seems that those individuals would more rightfully be characterized as reformists or even political prisoners rather than criminals.

  • I think we've pretty much worked out our vocabulary on this one, thanks to globalization of the human rights "prisoner of conscience" concept. Political prisoners are people who commit political offenses. There are marginal definitional issues, to be sure, which may be intensely controversial when they concern e.g. violence against policemen, but I rarely run into anyone these days who agrees with the young Eldridge Cleaver of Soul on Ice that raping white women, for example, is a political offense. We are more likely, at present, when faced with rape for political purposes, to call it a crime against humanity. The revolutionary rhetoric of the 20th century has, fortunately, been humanized. Don't you find yourself, on rereading, a little appalled by this graf?

Framing certain prisoners in this way works against the notion that they are dangerous to or even in opposition with free citizens, undermining the original dichotomy set forth by the state.

Defining Crime to Maintain the Class Structure

The US penal system can be described in terms of economic use and gain. The crackdown on crime has, intentionally or otherwise, become a means of managing surplus populations and class inequalities.

  • As a "means for managing surplus populations," the criminal justice system can hardly work. It bulges at the seams "managing" 1% of the population, at the cost of nearly $60 billion/year to operate on almost $3 trillion of investment in prisons. Whatever you want to claim it does for the ruling class, prison space that costs as much per capita as Harvard hardly qualifies as a way to deal with surplus population. It's statements like this one that make the essay so fundamentally ineffective in reaching any reader who isn't already in your corner.

Economics and wealth have become increasingly important when defining what a crime is and who the criminals are.

  • Are you sure? If bank presidents used to wind up on the chain gang more than now, where's the evidence? Consider all the forms of white collar misbehavior now punishable in the ranges of investment fraud, charity misfeasance, and environmental crime--just to take three examples at random--that are in either their first or second generation of prosecution. Consider all the past sources of corporal control over the poor (ranging from alcohol offenses to simple imprisonment for debt) that no longer exist. This is not a self-evident assertion, but you don't take the slightest step to help the reader believe it. Once again, the implicit message is, "If you don't already agree with me, I'm not talking to you."

Poor people and people of color have been targeted to make up an economic deficit and now compose an inordinate amount of the prison population, although they are not exclusively or even mostly responsible for the criminal acts committed in this country. Crime is big business in America. Those who commit the most serious crimes often are not imprisoned and also belong to the same class that determines the laws and continues to benefit from the incarceration of the poor. (Take, for example, the sentencing policy that punishes crimes involving “crack” at a 100-to-1 ratio compared to those that involve cocaine).

  • Could we have a different example? As this one is now officially obsolete it is surely time to find a second. There is a second, right?

The state very obviously sets justice and order in opposition to one another, criminalizing a particular class of people and permitting another to break the law to maintain the hierarchical structure of race and class in the US.

Reconsidering Crimes of the State and their Assumptions

The state’s offenses are hardly limited to its selective assent to drug use or white collar crimes. The US government has murdered and tortured its prisoners and political dissidents for centuries.

  • Pardon me, but compared to what? From a genuinely anarchist perspective, devoted to the pursuit of no-government, this might be a defensible statement: "all governments sooner or later murder and torture," says the anarchist, "somewhere somehow, the federal government of the United States among them." But from any less absolutist and doctrinaire position, the question would be "among governments, how does the federal government of the United States fare?" The answer unquestionably would be, as a light unto the nations and as a city upon a hill. Unless all the slaves ever held in private captivity are to be counted as prisoners of the United States government, which I think would constitute a gross distortion, your statement seems to me to lack even basic credibility. How many acts of murder and torture of political dissidents or prisoners per century are you counting? Let's try asking about a situation in which governments are most likely to engage in murdering and torturing political dissidents: The United States sustained a four-year civil war that killed 660,000 people out of a population of less than 35 million. How many government officials of the defeated confederacy were executed after the war? How many would you expect from a government that "has murdered and tortured its prisoners and political dissidents for centuries"? I think you owed the reader at least some evidence for the implication of your statement.

Americans are now familiar with state violence. In fact, such a considerable amount have come to support its use that a number of 2008 presidential hopefuls have either taken an ambiguous position on torture or an explicit stance for the practice in addition to supporting the death penalty. Perhaps this is because since state violence is often directed against racially or politically suspect minorities, most Americans assume that such brutality is not reserved for the obedient or law-abiding. This acceptance of state violence is based on the assumption that dichotomies between civil society and prisons, citizens and criminals, and free and unfree persons are constant. However, we have already seen how free citizens can also be criminals and certain citizens criminalized. Because these dichotomies are unstable and these categories can easily be distorted, any citizen has the potential to change places. If the criminals are only sometimes imprisoned, while other times non-criminals are jailed, can it be assumed that one exists as a free individual in free space and is opposite of a prisoner in a jail cell?

  • No. But as I pointed out at the top, it was you who forced the false dichotomy in the first place. One might say with equal accuracy that US-Americans, with their historically unique level of concern with civil liberties, reset the expectations of the whole human race on this subject over the last two hundred years, despite--or perhaps in part because of--their difficulties and struggles with one another over justice.

Although prisons exist, there is a promise that if one works hard enough, he can cross from captivity to freedom. This same notion motivates Capitalist America. However, America was developed as a stratified society, not designed with the success of all in mind. Slavery, for example, did not allow for the success of blacks, and unemployment is still highest for blacks at every level of education. With the myth of the American Dream in mind, how realistic is the existence of a free space for certain individuals? Even outside of prison walls, monitoring and self-policing still occurs, particularly for those who have been pre-coded as criminal. In addition, the existence of free acts – acts that can be engaged in without fear of surveillance or reprisal – continues to diminish, and along with it, free democratic spaces. Redefining crimes and criminals, as well as reexamining freedom and imprisonment seize the power to construct these notions from the state and are necessary to affect social change.

  • I think you meant "effect social change." And are you sure you meant "necessary"? Ten years after arguing Brown, as I pointed out in class, Thurgood Marshall argued Miranda, unsuccessfully, for the US. Did he thus attempt to nullify the social change he earlier effected? I think this conclusion actually means "I believe that a good kind of social change would begin by redefining crime and criminals as well as reexamining freedom and imprisonment so as to remove them from the sole declarative authority of the State." The prison-privatizers would probably agree with the conclusion so stated, though you don't want them to.

  • I think the first step here is to go through the draft removing all the intensification, all the hyperbole, all the false dichotomies and all the unsupported historical conclusions. That should reveal the underlying logic in a quieter form, on which you can then work before redecorating the result. The residuum, I think, is something along the lines of "The power to define deviant conduct naturally channels aggressive government social control along existing morphological lines, where social class and ethnicity are two primary examples of the forms of stratification punitive governmental social control tends to reinforce." This is, after all, a pretty familiar proposition, with which even those who might disagree are likely to be willing to contend. Now you can develop something else out of that line of thought, presumably more original, that can take someone who was willing to go the first step with you into more intellectually adventuresome territory. But the critical steps are: (1) Remember that you are writing for readers who disagree as well as those who agree; and (2) Edit as though in disagreement with the text.


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r3 - 12 Jan 2009 - 23:07:42 - IanSullivan
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