Friday, February 21, 2014

Abandoning a Failed Penal Experiment: New York's Historic Advantage

New York has made it share of bad penal policy choices.  Remember the "Rockefeller Drug Laws"; mandatory life sentences for persons arrested with large quantities of dangerous drugs that helped set the nation on the path toward indiscriminate use of incarceration?  But the "Empire State" has also had a historic knack for getting out of bad penal positions early.  The state began to wind down its position in mass incarceration as early as the mid-1990s, closing as many as 14 prisons, and in recent years has eliminated its mandatory drug laws.  This week the state announced a sweeping settlement with the New York Civil Liberties Union that will bring major reforms aimed at reducing the state's use of isolation prison units (read the NYCLU statement here).  These units, common in the US, keep prisoners isolated full time, with no programming and no access to other prisoners or correctional staff.  All too often, such isolation can continue for years and result in serious mental degeneration of the inmate.  The New York settlement will eliminate the use of this kind of incarceration for juveniles and people with mental illness and begin an expert led process to reduce the state's use of isolation as a disciplinary tool, especially long term use.  The experts, James Austin and Elton Vail, are two of the nation's best penologists and can be expected to seek dramatic reduction.

Interestingly New York's ability to pivot seems to have historic roots.  I was just lecturing to my undergraduate course on prisons about the infamous experiment in solitary confinement at the outset of America's correctional history.  Under the belief that separation of law breakers from society was essential to their reform, Jacksonian prison designers believed that total separation would be best of all.  When New York opened its new cellular penitentiary at Auburn in 1821 it conducted an experiment.  The prisoners deemed least redeemable (oldest and most hardened), were placed alone in cells day and night.  Other prisoners were isolated in cells only at  night, and worked together in workshops during the day.  According to historian Rebecca McClennan (in The Crisis of Imprisonment) the results of the experiment were clear within two years.  The prisoners kept in total isolation were so mentally damaged that the public outrage led a new governor to pardon the prisoners and end the practice.  New York's "congregate" model of common work became the national model for the 19th century.

At around the same time Pennsylvania opened a total isolation prison in Philadelphia.  Aware of Auburn's results, the designers in Philadelphia endeavored to provide the isolated prisoners with a larger cell in which to conduct some kind of distracting labor.  The isolation regime there also resulted in mental degeneration according to its many critics (Charles Dickens among them), but the state stubbornly held on to its regime for another fifty years (the result of organizational factors my former student Ashley Rubin analyzed brilliantly in her dissertation "“Institutionalizing the Pennsylvania System: Organizational Exceptionalism, Administrative Support, and Eastern State Penitentiary, 1829–1875”).

What makes New York so good at getting out of losing positions?  Could it be the State's long association with the financial industry (which survives by being adept at getting out of losing positions with the least damage possible)?  Is it the Empire State's corporatist style of consensus government as described by Vanessa Barker in The Politics of Imprisonment?  It would make a good research paper.  Other states are  moving.  Just today, Colorado Corrections Secretary Rick Raemisch published an op-ed in the New York Times (read it here), reporting on a night he spent in one of his state's isolation cells, and why he is so motivated to wind down the state's use of the practice.

Sadly California seems destined to play Pennsylvania in the 21st century replay of the 1830s debate about solitary confinement.  Under the administration of Governor Brown and Secretary of Corrections Beard, the Golden State has dug in its heels to defend the states typically outsized reliance on total isolation imprisonment.  No state holds more of its prisoners for longer periods of time than California. And while most states use isolation as a penalty for specific disciplinary violations (albeit in New York sometimes very trivial ones), California makes gang affiliation the primary rationale for isolation on a longterm or permanent basis.  A lawsuit has been mounted on behalf of prisoners held in isolation for more than ten years at the state's worst isolation unit, Pelican Bay's notorious SHU (read about it here).  Brown and Beard should follow New York's lead and seek to settle this lawsuit now with a broad strategy to end this shameful second era of solitary.  Perhaps Secretary Beard should follow the example of his Colorado colleague and spend a night at Pelican Bay.  While there he should sit down and talk with the gang leaders whose unified actions during last summer's hunger strike suggests more than worthy interlocutors, and whose lifetime isolation against all international human rights standards has clearly done little to make California prisons safer or less gang identified.

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