Tuesday, July 29, 2014

Inhumanity: The Real Problem with Mass Incarceration

We may disagree on who belong and who does not belong in prison, or on how long prison sentences should be, or what goals those sentences should be meted out to accomplish those goals, but one thing we should not, must not disagree on, is that those prisons should be humane.  What is humane?  Humane means, treating a person consistently with their status as a human being.  In other words, recognizing their humanity.  As I argue in my new book, Mass Incarceration on Trial: A RemarkableCourt Decision and the Future of Prisons in America, the real problem with the prisons of mass incarceration in America is precisely that they are inhumane and incapable of respecting human dignity.  This core reality of mass imprisonment came to light in an agonizing slow series of cases that began in the early 1990s with two law suits challenging  California’s treatment of prisoners with psychiatric disabilities resulting in sweeping orders to reform both California’s notorious Pelican Bay supermax prison, and to reform mental health care and suicide in prisons throughout the state.  It continued in 1999 with a lawsuit arguing that the same indifference to the suffering of prisoners gripped by disease was true for physical illnesses and injuries as well.  Finally, in 2011, the Supreme Court upheld the largest prison population reduction suit in history, Brown v. Plata 131 S.Ct. 1910 (2011), in order to allow adequate medical and mental health care to be finally established.

The Brown decision, although broad in its demand that prisons respect human dignity, focused in deep detail on California’s degrading prisons and chronic-hyper overcrowding.  The question remains, is California an outlier? Is the problem mass incarceration or badly managed mass incarceration?  Recent media coverage from around the country, possibly sparked by the Brown v. Plata case, is bringing to light remarkably similar problems around the country.  The plight of prisoners with significant psychiatric disabilities is a ubiquitous feature of this national problem.  The very presence of such prisoners is a clear sign that the legal system (not just prisons) do not treat people convicted of felonies as individuals with particular circumstances and features that condition both their crimes and the kind of prison time they are likely to do, rather they are imprisoned indiscriminately on whole categories of people (that’s the mass in mass incarceration).  Their treatment in prison is a sign of something else, a prison order based on war model where prisoners are an enemy force to be contained or if necessary crushed.

In a powerful example of such documentation Erica Goode in the NYTimes tells the story of Charles Toll, a 33 year old man suffering from diabetes and serious psychiatric disabilities, who died of asphyxiation after a “cell extraction” from a supermax cell in a Tennessee state prison (read the article here, one of a series titled “Locked In” intended to document prison conditions nationally).  Toll had sprayed correctional officers with an unknown liquid (prisoners in supermax cells have been known to “gas” correctional officers with a mixture of urine and feces) and correctional officers had decided to perform a “cell extraction.”
Outside the door of his solitary confinement cell at Riverbend Maximum Security Institution here, five corrections officers in riot gear lined up, tensely awaiting the order to go in. When it came, they rushed into the small enclosure, pushing Mr. Toll to the floor and pinning him down with an electrified shield while they handcuffed him and shackled his legs.

Such operations are not the exception.  They are routines.

In some institutions, extraction is viewed as a last resort. Training emphasizes the need to defuse the situation in other ways if possible, and extractions are tightly supervised. Special care is taken when mentally ill inmates are involved.
But in many facilities, training is minimal, supervision is lax and forcible removals are conducted reflexively, with little or no attempt at alternate solutions. Corrections officers who are so inclined can easily turn the process into a vehicle for beatings or other prisoner abuse.

More importantly it is deeply embedded in the logic of mass imprisonment.  The very same issues and behaviors were the subject of Madrid v. Gomez 889 F. Supp. 1146 (1995) in which a federal judge found such indiscriminate and violent cell extractions and keeping prisoners with serious mental illnesses in supermax conditions both cruel and unusual punishment in violation of the 8th Amendment.  Despite the fact that courts in other parts of the country have agreed with Madrid, it is clear that state prisons continue to ignore the constitution.  Why?

The story of Charles Toll highlights a number of features of mass incarceration that are endemic to it and which tend to reproduce themselves across the country.

  • Prisons incarcerate lots of people with serious psychiatric disabilities.  These disabilities are probably largely responsible for their crimes but prison regimes do not treat these problems, but rather deny and ignore them.
  • Prisons rely on supermax units (where prisoners are isolated from all programming and other prisoners and let out of their cell only one hour or two a week for showers or exercises), not just for “worst of the worst,” but as a routine tool to “manage” recalcitrant prisoners.
  • Prisons generate and exacerbate, chronic illnesses, physical ones like diabetes, and mental ones like schizophrenia, depression, or bi-polar disorder. That did not make much of a difference in the past when prison sentences mainly went to young and relatively fit men, and were for the most part short.  Today, when prisoners are older and in worst physical shape, and prison sentences last far longer, prisons are becoming engines of disease.  For the individual this can mean a lifetime of deeper illness and suffering (what I call “torture on the installment plan”).  For the government, which after the Affordable Care Act has become responsible for financing the health care of the poor in America which includes most of the incarcerated and formerly incarcerated, this an explosive source of cost inflation.
  • Prison officers do not view themselves as involved in rehabilitation (despite the label correctional officer), or even protection of prisoners, but instead in a tense containment of an enemy mass that can degenerate into lawless war at any time.  The only form of recognition that is routinely given to prisoners as individuals tends to be directed at humiliation.  This is not a result of hiring sadistic, but a predictable result of operating prisons.  Research since the famous “Stanford Prison Experiment” has shown that custody regimes predictably turn “guards” and “inmates” into enemy armies highly motivated to hurt and humiliate each other unless systematic steps are taken to counter act that tendency.
These features frequently lead to torture-like conditions when combined with the chronic illnesses (both mental and physical) they give rise to, and make it impossible for prisons to respect the human dignity of prisoners or of the correctional officers.  They lead to the conclusion that mass incarceration itself, that is policies which indiscriminately send people prison based on crime or criminal record with out individual consideration, is unconstitutional.  Human dignity, according to the Supreme Court majority in Brown v. Plata, “animates the Eighth Amendment.”  It is clear that the kinds of conditions described in this and many stories violate the constitution, but it will take innumerable lawsuits and decades of litigation to enforce that individually.  Instead we badly need a national commitment to restoring humanity to our prisons.  At a minimum that will require reducing the chronic overcrowding that exists in more states than not, by dismantling the web of state laws that indiscriminately send people to prison and which extend prison sentences beyond all rational penal purposes despite the grave risk of prolonged incarceration on mental and physical health.


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