The New Yorker Has a Sobering Look at the Whys of America's Prison-Industrial Complex


There are two million Americans currently in prison, with six or seven million under some kind of "judicial supervision" such as parole; Adam Gopnik at The New Yorker asks,"How did we get here?"  

Gopnik covers a lot of ground in "The Caging of America." He notes the nastiness of U.S. Prisons — including the scores of thousands of prison rapes a year (if not more), as well as the new popularity of solitary confinement— the great mystery of the falling crime rates of the past three decades, and condemns the war on drugs (at least on marijuana).

Gopnik, on one theory as to why our justice system is rife with misery and injustice:

William J. Stuntz, a professor at Harvard Law School who died shortly before his masterwork, "The Collapse of American Criminal Justice," was published, last fall, is the most forceful advocate for the view that the scandal of our prisons derives from the Enlightenment-era, "procedural" nature of American justice. He runs through the immediate causes of the incarceration epidemic: the growth of post-Rockefeller drug laws, which punished minor drug offenses with major prison time; "zero tolerance" policing, which added to the group; mandatory-sentencing laws, which prevented judges from exercising judgment. But his search for the ultimate cause leads deeper, all the way to the Bill of Rights. In a society where Constitution worship is still a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system—much inferior to the exactly contemporary French Declaration of the Rights of Man, which Jefferson, he points out, may have helped shape while his protégé Madison was writing ours.

The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn't a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can't search someone without a reason; you can't accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren't guilty in the first place and the jury got it wrong. [Emphasis added]

Gopnik also comes to this heartening conclusion about prisons:

[O]ne piece of radical common sense: since prison plays at best a small role in stopping even violent crime, very few people, rich or poor, should be in prison for a nonviolent crime. Neither the streets nor the society is made safer by having marijuana users or peddlers locked up, let alone with the horrific sentences now dispensed so easily. For that matter, no social good is served by having the embezzler or the Ponzi schemer locked in a cage for the rest of his life, rather than having him bankrupt and doing community service in the South Bronx for the next decade or two.

The rest here. It's a longish read, but an excellent overview of what Reason called "America's national disgrace" in our "Criminal Injustice" Issue from July 2010. (I can boast freely, because I was not involved in the production of it.) 

(Hat tip to John from the Department of Homeland Security.)


NEXT: Is Backpage Responsible for Kidnapping and Rape?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Wait a minuite. I knew John worked for The Man, but I didn’t know he worked for the DHS.

    Holy Fuck, man. So many things make more sense now.

    That said, this is a very good read. The New Yorker have done an excellent job. And so has Lucy!

    1. Now we know why he spends all day here. He’s keeping tabs on us for DHS.

      1. Cool, hopefully the spoofer troll is being added to the “drone-murder” list.

  2. Can someone tell me where Stuntz is buried, I’d like to go piss on his grave.

  3. The problem with Stuntz’ criticisnm is that you are left with a modified version of Top Men. If there aren’t any procedural safeguards, you have to rely on the individual integrity of the people in the system not to screw you over. Good luck with that approach.

    1. Naaah. Things went pretty well in France.

      I mean, beheading dissenters is just, right?

  4. The piece was interesting and well done but this part is just stupid.

    The other argument?the Southern argument?is that this story puts too bright a face on the truth. The reality of American prisons, this argument runs, has nothing to do with the knots of procedural justice or the perversions of Enlightenment-era ideals. Prisons today operate less in the rehabilitative mode of the Northern reformers “than in a retributive mode that has long been practiced and promoted in the South,” Perkinson, an American-studies professor, writes. “American prisons trace their lineage not only back to Pennsylvania penitentiaries but to Texas slave plantations.” White supremacy is the real principle, this thesis holds, and racial domination the real end. In response to the apparent triumphs of the sixties, mass imprisonment became a way of reimposing Jim Crow.

    The black:white prisoner ratio (relative to the general population) is lowest in the South. I’m no American-studies professor, but locking up lots of white people seems counterproductive to reimposing Jim Crow.

    1. You missed the point by focusing on race.

      The Southern culture is basically a Top Men culture. While it was formerly based almost exclusively on race, it has naturally evolved into a much more specious level of hassling the non-elites. Basically, why hassle a rich black dude when you can hassle some white trailer trash.

      In a sense this is no different from the attitude of New England Puritans who demand conformity – except that the Southern attitude has no use for conformity because that might challenge the hierarchy.

      In other words, race used to be somewhat of a scarlet letter, but now we are much for sophisticated. The scarlet letters aren’t tagged onto the body, they are tagged in government records – and they consist of drug use, sex crimes, DUI, etc.

      Where I think the article errs is that it isn’t a prison vs. non-violent offender issue. No good can come from saddling people with economic handicaps for the rest of their lives yet “freeing” them from prison. The issue is that we have too many crimes that are not actual crimes.

  5. ‘Prisons today operate less in the rehabilitative mode of the Northern reformers “than in a retributive mode that has long been practiced and promoted in the South,”‘

    Actually, it seems to be the worst of both worlds. If someone isn’t a serious danger to society, a simple flogging would satisfy the needs of retribution, and would probably act as a better deterrent than prison. People spend less time social networking with criminals and get their life back immediately. Maybe I’m just speaking as a person with a family, and children I’d like to see grow up (and with the benefit of a second income-earner in their life), but I’d trade 50 lashes for 5 years any day.

    Institutionalizing people who aren’t a danger to themselves or others (whether for crime or mental illness) might satiate the autherapeutarian need to “fix” everyone, whether they want fixing or not, but it doesn’t mean it’s fair or just or even that much less misery inducing.

    The problem with prisons that doesn’t seem to be covered (at least, in this article) is that there’s too damn much money to be made from oppression. That goes whether you have a public sector system with a well-organized and active union for prison workers, or a for-profit private system.

    1. I had an idea a couple months ago and haven’t heard any debilitating concerns yet.

      Basically, fire ~67% of prison staff and let states contract with local police departments to send officers for 10-15 continuous days every ~6 months. The plus side is the guards are less burnt out and the cops are less aggressive about arresting a pot dealer who might jerk off on them next week. I guess the downside is that the cops might care even less about violent criminals and the guards would have less reason to develop long-term, helpful relationships with inmates.

      I don’t know if it’s a good idea, but I do think it’s obvious enough that, absent the prison-industrial complex, somebody would have tried.

    2. If someone isn’t a serious danger to society, a simple flogging would satisfy the needs of retribution

      But it isn’t, and has never been, about retribution. It’s always been about money and power. Flogging someone gives the flogger a couple hours of power at most. Imprisoning someone for years gives the warden and guards power for years and a paycheck.

  6. How’d that Rights of Man stuff work out under Vichy?

    Plenty of reasons to dislike our prison system, but that the Miranda Ruling wasn’t French enough seems an odd one.

Please to post comments

Comments are closed.