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America's human rights crisis in historical perspective.

In late December, in a remote New York state prison, some 80 inmates were released from the isolation cells in which they had been individually interred 24 hours a day, seven days a week, for the past three years. During that time, each man had slept, prayed, exercised, and eaten (or refused to eat) his meals in a cell measuring three and one-half feet wide by seven and one-half feet long; to borrow Jonathan Simon's trenchant phrase, the prisoners had been all but "totally incapacitated." Several of the men had died in the course of their incapacitation, some from untreated pulmonary disease; many were deranged and some had attempted suicide; others experienced painful swelling, paralysis, and numbness of limbs. When the guards opened the cell doors, one man leapt from the fourth floor tier (miraculously, he survived the fall).

The men's experiences of perpetual isolation will be depressingly familiar to anyone who works in or on contemporary US corrections. Less familiar, however, is what occurred immediately after the prisoners were released from their cells. Most of the survivors were informed that the governor of New York had fully pardoned them. Having read reports of the men's suffering and inspected the cellblock first hand, the governor concluded that the right thing to do was to close the unit permanently and to free and fully pardon the men.

Just a few years ago, the governor's words and deed would have been unthinkable--the stuff of old school, Warner Brothers "social conscience" movies. Even today, and with the help of the Supreme Court's groundbreaking majority decision in Brown v. Plata, it is difficult--though perhaps, at last, not impossible--to believe that a governor would issue a blanket pardon to all those subjected to supermax-style isolation. In fact, these events took place 194 years ago at New York's Auburn State Penitentiary; they were documented, for the first time, in 1965 by historian W. David Lewis (1965) in his pioneering study, From Newgate to Dannemora: The Rise of the Penitentiary in New York, 1796-1848.

So, how did we get from here to there--from an era in which continuous isolation was found to be a scandalously inhumane exception to the penal norm, to an age in which the Security Housing Unit (the isolation cell known as the SHU) is an integral and widely supported feature of the state and federal penal systems? Jonathan Simon's incisive new book tackles this urgent question, offering a remarkably persuasive explanation of how the principle of total incapacitation and the system of mass incarceration it supports came into existence--and of how it is finally being challenged by the federal courts. Mass Incarceration on Trial is a complex, ambitious book that contains multiple historical, ethical, legal, sociological, political, epistemic, and even aesthetic claims. It is truly interdisciplinary in scope, and a virtuoso demonstration of the power of interdisciplinarity to draw the connections among very different phenomena--popular culture, demographics, epidemiology, jurisprudence, visual culture, and politics, to name but a few. All this complexity is elegantly distilled into a 172-page narrative that brings us to what Simon convincingly argues is a crossroads: "We will either decide to countenance inhumane and degrading treatment on an industrial scale, or we will have to rethink our approach to crime and punishment, beginning with downsizing and radically reinventing prisons" (Simon 2014. 10). His book offers the most rigorous, persuasive, and, refreshingly, hopeful account of why we must--and, crucially, how we can--carry out that radical reinvention.

There are many excellent books on the rise of mass incarceration and the various moral, economic, and political disasters that enabled and were in turn perpetrated by that system: Marie Gottschalk's Prison and the Gallows (2006), Ruth Wilson Gilmore's Golden Gulag (2007), and David Garland's (2001) and Michelle Alexander's (2010) important books, to name but a few. Contemporary penal history is an expertly and thoroughly plowed field. But Simon, combining his training in history and the social sciences with a lawyer's technical grasp of prison litigation and jurisprudence, has nevertheless made a series of altogether fresh and deeply important interventions. He shows us how the federal courts became catalysts, at first unconsciously and then consciously, in both documenting and changing the system (the courts are strangely absent from other scholarly accounts). He persuades us that European human rights jurisprudence is not only an entirely appropriate and useful tool for mounting legal challenges to an abusive prison system, but also that the US Supreme Court now recognizes it as such (thereby giving it material and not merely theoretical heft). And, in a strikingly original closing chapter, he seamlessly moves from arguing for the moral necessity of radical reinvention to advocating a practical strategy for action--including how to substitute a "new common sense" about crime and punishment for the popular old misconceptions that crime rates are spiraling skyward (they haven't since the late 1980s) and that the "harsh justice" of mass incarceration is the best response to those allegedly sky-high rates.

Simon appropriately cautions that we do not know exactly what mix of practices and institutions will replace the old regime. However, he does suggest that an effective overall strategy would include proven crime prevention programs that aim to regulate and mitigate, rather than eradicate, routine crimes such as drug dealing (which, as innovative policing has proved in several American cities, does not inherently lead to higher levels of street violence); the replacement of mega-prisons by smaller, more specialized institutions; the rescaling of sentencing; the amendment of state and federal constitutions to prohibit the abusive "treatment"--not just the narrowly construed "punishments" of the Eighth Amendment--of offenders; and public education about the realities of effective crime prevention and the human rights violations that "went on for decades |in California's prisons| and involved as many as a million Californians ..." (Simon 2014, 168). Simon provocatively insists that past violations need to be squarely acknowledged and redressed before a new system can emerge, and offers the transitional justice model of the truth and reconciliation commission. In exchange for immunity from prosecution or civil lawsuit, administrators would testify to the abuses that went on and why they "felt justified" in planning and operating prisons that would deny inmates their basic human rights.

Quite brilliantly, Simon's book advocates for and operationalizes the spirit of this transitional justice strategy by carefully documenting (and acknowledging) the prison conditions that were held to be an unconstitutional abridgement of prisoners' dignity under the Eighth Amendment. Shedding the old common sense and acquiring new, good sense requires bold acts of imagination. And Simon values or advocates the art of imagination, while seeking to initiate readers into it. As well as making the case for reimagining incarceration, he vividly summonses readers' imaginations--through the inclusion of prison photographs, testimony, and close readings of those texts--in the service of activating our empathy for the prisoner and our capacity for moral outrage. Certain instances of this conscience-summonsing strategy are particularly effective: discussing a photograph that, significantly, was appended to the majority's opinion in Brown v. Plata, Simon asks us to place ourselves in the position of the mentally ill convict forced to stand erect in a "dry cage"--a body-sized cage--for hours at a time, awaiting psychiatric care that may never come or is grossly inadequate. He shows us photos of the "bad beds"--bunk beds crammed into gyms or other spaces, into which a multitude of offenders, some mentally ill, others disabled, are in turn crammed indiscriminately, with no or little supervision. "We can imagine," he writes evocatively, "being vulnerable to assault from someone in the crowd who has had enough and suddenly lashes out, all the more so if either the victim or perpetrator is mentally ill" (ibid., 147). With typical incisiveness, he cuts to the heart of the matter:

These photos give the lie to claims of the legitimacy of mass incarceration, that prisons are a secure and humane way to deal with unacceptable threats to the community's safety. They usher us into not that fantasy prison but into a refugee camp. They show the sort of humanitarian crisis that we're so used to seeing on the news, about lands far away, (ibid., 149)

We have our own human rights crisis in the United States, and, as Simon argues, the majority of the Supreme Court has begun to recognize and grapple with that fact.

If Mass Incarceration on Trial abounds with provocative ideas and fresh information, it also raises interesting questions about the current system's place in the longue duree of history, as well as the uses of history in openly normative work such as this. Many historical claims are scattered throughout the text; history seems important to Simon, given the frequency with which he invokes and recounts it. More precisely, a certain kind of usable history seems important to him. There are many ways to use history or render it usable. In Mass Incarceration on Trial, Simon mostly uses history as the analytic negative in his argument about the present. In particular, he is invested in arguing that the advent of mass incarceration was a radical and terrible break from something he refers to as "tradition."

This kind of historical dualism--othering the past by describing an earlier era in glowing or highly critical terms so as to construct a pronouncedly different present--has a distinguished if troubled pedigree. As Martin Jay reminds us, the "Dark Ages"--that time of apparent ignorance, disease, stagnation, and decline--was invented by, and most decidedly for, the Enlightenment (historians have long since debunked that characterization of the Middle Ages). Sometimes, the past is glorified as an analytic negative. Late-nineteenth century Populists, the Knights of Labor, and some communitarians today lauded the earlier, and allegedly golden, age of Jeffersonian republicanism, ignoring its proslavery Constitution, aggressive expansionism, and patriarchal culture, among other inconvenient truths. Similarly, Simon employs an analytical negative--what he calls the "traditional use of imprisonment," or, more simply, "tradition." His term "total incapacitation," which expands upon the work of Franklin Zimring and Gordon Hawkins in their 1995 book, Incapacitation, distinguishes "the current system from the traditional use of imprisonment as a dignified effort to defend society against crime" (ibid., 11). Simon further elaborates in the chapter on Davis v. Plata that our

thirty-year experiment with mass incarceration was a break with tradition. Medical care had been considered important in California prisons in the 19th and 20th centuries, and this attitude had its origins in American correctional ideas going back to the time of the Revolution and lasting through several shifts in medical and penal standards, (ibid., 103,emphasis added)

Simon then recounts the place of medical discourse in the theories of John Howard, Benjamin Rush, Jeremy Bentham, and others. He is careful not to romanticize this "traditional" past, but he does clearly give it a mostly positive valence, albeit with a trace of ambivalence.

The rhetorical (and, possibly, jurisprudential) appeal of this strain of historical dualism--summonsing the memory of a just and revolutionary "tradition" of penology (or at least a certain strain of a just and revolutionary tradition of penology in the United States)--is clear. Simon's maneuver implicitly claims patriotism, justice, and history itself for the progressive side. It paints our system of mass incarceration as inhumane, unconstitutional, and un-American. By marshaling evidence to suggest that things were once otherwise (and better), Simon denaturalizes the present and enables us to imagine an alternative, just future. Such sharp distinctions, between one and the other--past and present, rehabilitation and total incapacitation, justice and injustice, tradition and declension, revolution and reaction--are more evocative and therefore probably more memorable. But the problem is that the history of the US prison is at odds with what Simon is positing as its tradition.

The historical scholarship does not support the claim that there was a single "tradition" of incarceration; likewise, it does not support the claim that what we have seen in the last 30 years is a neat, clean break from the past, and the emergence of a radically new, hitherto unseen and unknown phenomenon. Evidence is plentiful that rehabilitative and medical ideas--and personnel--have indeed influenced penal theory over the centuries. However, that influence was neither constant nor, throughout great swathes of US penal history, even partially realized in practice.

I am not arguing against usable history, or refusing the possibility of conceiving a rhetoric that is powerful (as Jonathan's is) and historically well grounded. Rather, I would like us to imagine a different kind of usable history, one that does not depend on the kind of dualistic reasoning that distorts the present and the past. Incorporating a deeper understanding of penal history might add to our understanding of incarceration in general and of the specific mode of incarceration we have today. In so doing, it might also contribute to the normative project of abolishing mass incarceration by illuminating strategies that have worked in the past and the obstacles we are likely to encounter as we rise to Jonathan's challenge to "radically reinvent" punishment.

Using an analytic distinction that does not pit tradition against the present would help us here. I have in mind a rough, tripartite distinction among: (1) penal discourse or philosophy (the writings and ideas of reformers like Rush, Howard, and Bentham); (2) the everyday and extraordinary operations of flesh-and-blood institutions--inmates, guards, wardens, chaplains, visitors, and others who populated or otherwise circulated through the prisons; and (3) official, administrative doctrine and strategy (which itself contains a distinction, but broad brush strokes for now).Though they have sometimes converged, discourse, institutional life, and administrative strategy describe three distinct phenomena. Depending on which one we are talking about, incorporating the history of these things might be very useful to Simon's normative goal of creating a new common sense about crime and punishment.

If we situate the system of mass incarceration in the longue duree of penal history, going back to Howard's study, the Walnut Street Jail, and the first state prison guards' manuals of the nineteenth century, the suggestion that mass incarceration is a radical departure from what Simon calls the "traditional use of imprisonment" seems less a clean break from history than a revival or reprise of some of its recurring and most troubling features. Although ideas about prisons as incubators of disease, both biological and moral/social, and about rehabilitation and the souls of prisoners have intermittently characterized prison discourse since Howard, incarceration has rarely measured up in any significant or enduring way to his progressive ideals in state prisons. Rather, the norm in the state prisons of the nineteenth-century North or the post-Civil War convict-lease camps of the South was forced labor, cat o' nine tails, waterbathing (which anticipated waterboarding), high mortality rates, and untreated illnesses.

Official administrative strategy has sometimes embraced and even implemented rehabilitative ideas. That was particularly true in the Early Republican period, again in the Progressive Era, and once more with the "bibliotherapies" and individualized case studies of 1950s California. With few exceptions, for the balance of prison history only a few prison programs geared toward educating and caring for the mental, spiritual, or physical health of prisoners were implemented or properly funded for any length of lime. Even when competently implemented, they were always mediated by flesh-and-blood institutional dynamics such as relationships among and between prisoners and guards, or other conflicting administrative imperatives (such as fiscal constraints, security needs, and the official rule book). In the 1880s and 1890s, even the great Elmira Reformatory under leading progressive Warden Zebulon Brockway approached progressive ideals or official administrative strategy for only a few years, if that. Despite Brockway's reformist ideas, his use of the inherently abusive contract labor system and its devastating impact on the bodies and souls of the institution's young men has been all but forgotten.

After accounting for prison life and the often internally conflicting, externally mediated policies of administrators, and not just the ideals of reformers or official doctrine, a very different picture of the US prison emerges than the one in Simon's book. From the beginning, the overwhelming record of state prisons has been one of recurring crisis, suffering, ineffectiveness, and, although the courts did not use to call it that, human rights abuses. This is clearly not the revolutionary penal "tradition" that Simon has in mind when he laments the loss of "the traditional use of imprisonment as a dignified effort to defend society against crime" (ibid., 11). The writings of penologists and related social theorists do, however, reveal a tradition of advocating for a system of imprisonment that treats inmates humanely while defending society from crime. Yet a major caveat is that although rehabilitative discourses and policies were emphasized in many state penal systems, most especially California's in the years after World War II, rehabilitative discourses had a much more checkered past, both before and during those years. After the contract prison labor system that had dominated incarceration for the better part of the nineteenth century was abolished, rehabilitative penology surfaced in northern cities and states during the Progressive Era. It flourished in every region in which prison labor contracting and leasing had been abolished, including the South. But neither rehabilitationist theory nor the policies it influenced were ever intended to apply equally to prisoners. Most important, progressive penology was never intended to apply to African Americans or other nonwhite people--perhaps especially in the North.

For all its enlightened vocational classes, educational programs, psychiatric services, and other innovative programs, the rehabilitative penology of the Progressive Era was always, both in theory and in practice, intended for white prisoners. The ideal-type prisoner assumed by rehabilitative penology in the Progressive Era and through the interwar years was almost always a young, white native-born man or white male immigrant (a subset of progressive penology addressed the very small minority of prisoners who were white women). And, between 1890 and the 1940s, the same northern progressives who introduced rehabilitation to northern prisons, also segregated them--often for the first time. Northern as much as southern prisons enforced a Jim Crow system, whether more or less overtly.

Simon does not explore the Jim Crowism of Progressive Era penology in the North, but it may be directly relevant to his account of the demise of rehabilitative ideology in the 1970s. The racial exclusionism of rehabilitative penology proved fatal to it as whites became a minority in prison populations in New York and other northern states in the early 1950s, a trend that grew more pronounced in the 1960s; meanwhile, popular culture began to associate southern chain gangs and prison farms, as well as the northern "Big House," with black, and increasingly, Latino men. As a result, progressive penology lost its implicit raison d'etre--the re-socialization of the young white man in the image of the ideal citizen. It is also worth considering whether this demographic shift led white citizens to abandon their previous support of rehabilitative prisons (before the 1960s) once the typical prisoner no longer resembled a young white guy, not unlike themselves, their brother, or son, who, they imagined, had made mistakes, or "had had a bad start in life" and just needed some help "getting up on his feet." Surely Simon's illuminating discussion of the image of the prisoner as a threatening black or brown revolutionary terrorist (e.g., George Jackson or the Attica rebels) gained traction among certain white sections of the citizenry at that time for a host of reasons, and not only because of age-old tropes about armed angry black men. As such, the perceived and actual shifts in prison demographics almost certainly played an important role in the demise of political support for rehabilitative penology and policy.

Whatever the case, grappling with complex questions such as these is necessary if we are to recover a truly usable--and a usably true--history. That history, I would argue, is indispensable to the larger project that Jonathan Simon has challenged us to undertake: acknowledgement, reconciliation, and new common-sense social policies.


Alexander, Michelle 2010 The New Jim Crow: Muss Incarceration in the Age of Colorblindness. New York: The New Press.

Garland, David 2001 The Culture of Control: Crime and Social Order in Contemporary Society. Chicago: University of Chicago Press.

Gilmore, Ruth W. 2007 Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California. Berkeley, CA: University of California Press.

Gottschalk, Marie 2006 The Prison and the Gallows: The Politics of Mass Incarceration in America. Cambridge: Cambridge University Press.

Lewis, W. David 1965 From Newgate to Dannemora: The Rise of the Penitentiary in New York, 1796-1848. Ithaca, NY: Cornell University Press.

Simon, Jonathan 2014 Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America. New York: The New Press.

Rebecca McLennan *

* REBECCA MCLENNAN (email: is associate professor of history at the University of California, Berkeley. Her research focuses on North American legal, cultural, political, and economic history. She has published widely on US penal history, and her most recent book, The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776-1941 (2008), was awarded several prizes, including the American Historical Association's Littleton-Griswold Prize. She is currently writing a history of the juridification of life in the industrial era.
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Author:McLennan, Rebecca
Publication:Social Justice
Article Type:Report
Geographic Code:1USA
Date:Mar 2, 2016
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