Cruel and Usual Punishment
In 1949, three men, Robert Harp, Maurice Meyer, and Harry Siegel, filed a lawsuit in federal court on behalf of more than four thousand three hundred men incarcerated at Illinois State Penitentiary. They argued that the same legislation enacted by Congress to protect freed slaves during Reconstruction also applied to incarcerated people, and that under those laws the prison’s warden, Joseph Ragen, had engaged in a range of misconduct. This included encouraging “sadism” among guards, frustrating prisoners’ access to the courts, and using solitary confinement to terrorize anyone unwilling to submit to the institution’s punitive regime.
Ragen dismissed the lawsuit as a “shakedown.” Harp, Meyer, and Siegel, he claimed, were just trying to create controversy. “The three men who have filed the suit are among the most vicious we have,” he told The Associated Press. “There’s no cruel or unusual punishment here.” (The AP declined to report that a guard at Ragen’s prison had recently resigned after refusing to beat a man in solitary confinement—and that the abused man subsequently tried to commit suicide).
Retaliation against the trio soon followed. Siegel spent months in solitary before being transferred to a prison three hundred miles outside of Chicago, which made regular visits from his wife and children impossible. Meyer, who had drafted hundreds of habeas corpus petitions for fellow prisoners, had his typewriter confiscated and constantly feared being brutalized by guards. Hart testified that Ragen had confronted him and told him, “I will kill you before you get out of here.”
With few exceptions, courts permitted the caging of millions of people, and then did little to address the atrocious (and often unlawful) conditions of their confinement.
The response from the courts was a shrug. These were matters of “internal administration and discipline,” one federal judge explained. The court could not possibly become a “co-administrator” of Illinois’s prison system “along with the duly appointed state officials.” And what of the abuse against the men filing suit? Even if every allegation were true, the Seventh Circuit Court of Appeals wrote, federal involvement was inappropriate. A prisoner, they said, was to be “an alien in his own country,” undeserving of the rights granted to free citizens.
As the legal scholar Judith Resnik notes, this approach was not an aberration. Indeed, it became known as the “hands off” doctrine, and it helped enable decades of frightful conditions inside of prisons and jails. By the 1960s, its official influence had started to wane, as courts began to recognize certain penal practices as unconstitutional. But in many respects, judicial deference continued to define the relationship between incarcerated people and the institutions that sanctioned their punishment. With few exceptions, courts permitted the caging of millions of people, and then did little to address the atrocious (and often unlawful) conditions of their confinement.
Last spring, as the coronavirus began to tear through jails, detention centers, and prisons, it appeared, for a moment, that this doctrine might be weakening. In Ohio, James Gwin, a federal judge, ruled that while prison officials at FCI Elkton had made some efforts to reduce the threat of Covid-19, they were fighting “a losing battle” to contain infections. With insufficient testing, limited PPE, crowded living spaces, and an incarcerated population with more than eight hundred high-risk individuals, Gwin concluded that the most appropriate countermeasure was to release at-risk individuals or transfer them to prisons that could support social distancing. His argument was supported by a memo issued by then-Attorney General William Barr, which directed the Bureau of Prisons (BOP) to “prioritize the use of home confinement.”
But despite Barr’s directives, the BOP fought Gwin’s order. The case eventually made its way to the Supreme Court. There, Noel Francisco, Trump’s solicitor general, asked the Court to oppose a tentative release plan, claiming that Elkton’s officials had met the “minimal civilized measure of life’s necessities,” the standard adopted by the Court in the 1980s to assess the constitutionality of prison conditions. He added that Gwin lacked the “authority or expertise” necessary to ensure the safe release of those incarcerated at Elkton and that it was the responsibility of the BOP, not the judiciary, to administer prisons.
The Supreme Court concurred with Francisco, and in the following months, the lower courts largely returned to their tried-and-true posturing. Since the first Covid-19 case at a correctional facility almost a year ago, more than five hundred thousand additional cases have been reported. These numbers are likely a low estimate; mass testing in prisons and jails is rare, and incarcerated people, aware that a positive diagnosis portends an indefinite stay in solitary confinement, are often reluctant to report symptoms. The consequences have been dire. Accounting for age and sex, incarcerated people are about three times more likely to die from Covid-19 than those on the outside and about four times more likely to become infected; in some states, the rate of infection is almost ten times higher in prisons than in the general population. Inequalities abound in these numbers, too: a recent lawsuit noted that some ninety percent of those housed in Covid-19 wards in New York City’s jails are Black or Hispanic.
After a sanguine spring, during which writers like The New Yorker’s Sarah Stillman wondered whether the coronavirus might “make us rethink mass incarceration,” the status quo prevails once again. Jail populations in cities like Chicago, Houston, Philadelphia, and Miami have rebounded; in Los Angeles, people are now being detained for longer than when the pandemic began. States like Alabama, Michigan, Pennsylvania, and South Carolina, meanwhile, have seen no change or even a decrease in parole rates.
Other interventions have struck similarly dull notes. At the end of January, regulators in California fined officials at San Quentin, the state’s oldest prison, in connection to an outbreak triggered after nearly two hundred people were hastily transferred there from a Covid-stricken correctional facility outside of Los Angeles. In the following months, more than two thousand six hundred people were infected and twenty-nine died. What, inquiring minds might wonder, was the financial penalty associated with this public health disaster, which one state lawmaker characterized as the “most deadly medical mistake in the history of the California prison system”? A mere $421,880, or a rounding error in the state’s $13.4 billion annual prison budget.
Jail populations in cities like Chicago, Houston, Philadelphia, and Miami have rebounded; in Los Angeles, people are now being detained for longer than when the pandemic began.
Advocates and public health experts had long cautioned against the sort of actions that precipitated the crisis at San Quentin (the prison bungled its response to an influenza outbreak, also with fatal results, in 1918, and is currently under federal oversight due to a history of inadequate medical care). But lawmakers still went to great lengths to keep people caged—and it was hardly a trend confined to the Golden State. On the other side of the country, officials in Alabama reopened a prison previously condemned by federal investigators after they had discovered it was “plagued by rats, maggots, open sewage and toxic fumes.” Those transferred to the facility reported “unsanitary and inhumane” conditions, including a lack of working toilets.
Faced with such intransigence, many have pleaded with lawmakers to ensure the timely vaccination of incarcerated people and correctional officers, and today, some forty states have vaccine schedules that prioritize these groups. But distribution has been spotty at best. This has proven a problem of political will, not just logistics: Colorado governor Jared Polis summarized the position of many state executives during a press conference last year when he said, “there’s no way” a vaccine would go to an incarcerated person “before it goes to people who haven’t committed any crime.” To make matters worse, in many states, local news reports indicate that anywhere from 40 to 60 percent of correctional officers have declined vaccines, even though they are the primary carriers of Covid-19 into both prisons and nearby communities.
But regardless of whether vaccinations proceed in a timely fashion, a vaccine alone will not rectify this public health emergency. Last May, as the litigation at Elkton played out in the courts, a man incarcerated there explained that the challenges posed by the coronavirus could not be attributed to a shortage of PPE or inadequate medical care, the sort of heuristics that might be used to assess whether officials had shirked their already-minimal constitutional obligations. Instead, he argued that they faced a much larger problem: “the collective sense of the undeservingness of prisoners.” A vaccine might be “nice” and “proper P.P.E. would help. But the real cure for our woes is an affirmation of the inalienable entitlement to life for people in prisons and jails.”
Before anyone was reporting on the disproportionate impact of Covid-19 on incarcerated people, prisons and jails were unsanitary, overcrowded, and full of aging people with serious chronic ailments—“maximum security nursing homes,” as the scholar Marie Gottschalk put it in 2016. And for decades, uprisings, hunger strikes, and public actions had tried to draw attention to these dismal living conditions, often with limited success. Overcrowding became such an issue that in 1981 the Supreme Court ruled in Rhodes v. Chapman that two people could be “constitutionally” warehoused in a cell originally designed for one person. It did so despite testimony from public health experts that overcrowding would exacerbate mental health issues and suicidal ideation, increase the spread of disease, and lead to even more violence. Thurgood Marshall, the lone voice of dissent in the case, icily observed that most of the windows in the Supreme Court were larger than the living spaces allotted to the men who had filed suit.
If Marshall’s view had prevailed, more than two-thirds of penal facilities in the United States would have been deemed unconstitutional. But the Court did not force officials to reckon with the already burgeoning costs of mass incarceration. Instead, they made incarcerated people bear the penalties alone.
It is worth recalling Rhodes today, and not only because it set the stage for the current crisis. For all the pontificating about the promises of democracy, the necessity of fairness, and the sanctity of the “rule of law,” America’s greatest legal minds have never dreamt up something better for prisons than an expectation that they offer a “minimal civilized measure of life’s necessities.”
That six-word dictum—deliberate and calculating, mostly indifferent to suffering and pain—sounds more like a phrase authored by a war criminal than an articulation of principles from a country’s highest court. It is, plainly speaking, a doctrine intended to sanction misery and death. It asks almost nothing of penal officials, even though they are responsible for regulating every moment in the lives of some 2.2 million people. It reflects absolutely no concern for life after incarceration—how great can one’s future aspirations be if one is deprived of everything except the minimum required to survive?—perhaps because American courts have never shown much interest in what comes after incapacitation. Indeed, it took more than two hundred years for the Supreme Court to even consider whether prisoners’ Eighth Amendment rights might extend to the facilities where they have been collectively warehoused for millions of years. And when the Court did so, it imagined a punishment system that would be acceptable so long as it did not mete out penalties that involved the “wanton infliction of pain,” a polite, if overwrought, description of torture. Discomfort and distress were expected; “serious deprivations of basic human needs” could only be unconstitutional in the absence of “any penological purpose.”
As the United States again reckons with overcrowded prisons, filled with desperate and dying people, it bears repeating that this crisis was not inevitable.
But what penological purpose did the Court really have in mind? After decades of waging war on crime, rehabilitation was an increasingly remote objective for lawmakers. Those speaking in the language of deterrence wanted prison to be ruinous and undesirable. California’s legislature had stated these attitudes outright in a 1976 law which declared that “the purpose of imprisonment for a crime is punishment,” a view that would be federalized a few years later when Congress updated sentencing guidelines to note that “imprisonment is not an appropriate means of promoting correction and rehabilitation.”
In charting this vindictive drift, one might be inclined to ask for just a little benevolence: a legal system where incarcerated people possess a full range of rights and liberties, where penal officials do not enjoy such great authority (and, therefore, impunity) over punishment, where lawmakers are sympathetic to the vast social costs associated with incarceration. A system in which inequality is not tolerated—and even defended—in the name of public interest. But throwing off the “penological nostrums of preceding decades,” as the writer Jessica Mitford put it, will not be enough. Achieving something more than superficial adjustments in our vast punishment bureaucracy will require radical changes in the social and economic order animating the dispossession and punishment that takes place both within and beyond the walls of prison.
As public health experts have consistently reiterated, prisons are not separate from the rest of civil society, even if their administrators endeavor to operate them as if they were feudal lords. This knowledge has underwritten countless actions by incarcerated people over the last two centuries. And despite the threat of retribution, prisoners have consistently organized against repression, determined to remind those “on the outside” that state-sanctioned violence, torture, and atrocity happen inside this country’s borders too. The pandemic has doubtlessly heightened the mortal consequences of our legal system’s indifference to suffering. But as the United States again reckons with overcrowded prisons, filled with desperate and dying people, it bears repeating that this crisis was not inevitable.
Incarcerated people have called on lawmakers and the public to see the rot at the heart of our legal system. It is difficult to say whether their actions will precipitate a meaningful change or yet another cycle of outrage and inaction. But the outcome will surely depend on whether those in power can be made to recognize prisoners’ “inalienable entitlement to life” rather than the Court’s minimal measure.