Barbaric and Excessive: Two Books on Punishment in the United States

ON OCTOBER 11, 2018, the Washington State Supreme Court struck down the state’s use of the death penalty due to overwhelming evidence of racial bias. Key players, including the state’s Attorney General Bob Ferguson and Governor Jay Inslee, praised this move as a distinction of humaneness. Ferguson went so far as to assure us, “We should act quickly to remove the death penalty from state law once and for all. Next session, I will again propose legislation repealing the death penalty, replacing it with life in prison without the possibility of parole.”

Washington is now the 20th state to overturn the death penalty, a trend no doubt tied to the difficulty of obtaining pharmaceuticals necessary for lethal injection. Whether it’s pharmaceutical companies’ noncompliance or the awakened humanity of the courts, the death penalty is increasingly unpopular today. This, however, does not mean that the United States’s penchant for severe punishment is any less strong or in force right now.

Bob Ferguson’s proclamation for a reformed criminal justice system, where life in prison without parole replaces the death penalty, only proves how far the imagination will stretch for some. One in seven people in prison today are serving a life sentence, which is a total of more than 200,000. Some of these prisoners are from the three strikes law that nailed many nonviolent drug offenders. In any other developed nation, this would be considered inhumane and absurd.

Two new books echo this sentiment. Marc Mauer and Ashley Nellis, authors of The Meaning of Life: The Case for Abolishing Life Sentences, and Alisa Roth, author of Insane: America’s Criminal Treatment of Mental Illness, argue that the US criminal justice system metes out excessive punishment at the expense of public safety and the humanity of those caught within its web. The Meaning of Life focuses on the problem of life sentences bloating the prison system and violating human rights, while Insane addresses mental illness and why jails and prisons have become the de facto institution for those suffering from severe mental illness. Both books expose grave injustices in a broken system and advance the discussion by adding new insights addressing reform, not just for nonviolent drug offenders, but for all prisoners.

Mauer — executive director of The Sentencing Project — and his co-author Nellis — a policy analyst at The Sentencing Project —would reject Bob Ferguson’s quick response to replace the death penalty with life without parole in Washington state. They cite racism as a prevailing factor in how we punish, which will not simply go away when we exchange one severe punishment for another. According to Mauer and Ellis, two-thirds of the 200,000 prisoners serving life sentences are people of color. Public perceptions — not always based in reality — are well known to influence political platforms that determine policy, which has historically resulted in the 1973 Rockefeller drug laws and Bill Clinton’s 1994 Violent Crime Control and Law Enforcement Act that mandated life sentences after “three strikes,” overwhelmingly tipping the scale toward locking up young black men and women. Mauer and Ellis find that “whites hold more punitive beliefs than other racial groups. To the extent that whites view certain crimes as ‘black crimes,’ their support for harsh punishment increases.” Whites also overestimate the proportion of crime committed by people of color up to 20 to 30 percent. As a result of this biased overestimation and an overzealous commitment to punishment, demands for public safety are entrenched in retributive, vengeful gains over restorative, forgiving measures that may have better overall outcomes for society.

Mauer and Nellis’s central argument, based on research and case studies, rests on the overuse and excessiveness of the life sentence, which they claim is racially targeted and does not result in public safety returns. Their conclusion follows the logic that if the overall goal of the prison system is to prevent crime and to rehabilitate prisoners then the widespread use of life sentencing is a step away from this goal. Some of Mauer and Nellis’s most compelling evidence comes from their research on the diminishing returns of life sentencing. They find that prisoners age out of crime, noting that prisoners are “much less of a public safety risk at the age of forty than they were at twenty.” This decrease even holds for “individuals who are frequent offenders.” The peak age for robbery is 19 and the peak age for murder is 20, with these rates more than halved by the time an individual reaches their early 30s. One explanation for this is maturity. People grow up and develop responsibilities that can change the course of their lives. Another explanation, unsurprisingly, is stable employment. With this information, we can assume that prisoners doing over 20 years for crimes they are not likely to ever commit again is a waste of resources and a waste of a life.

Another important takeaway from Mauer and Nellis’s book is that there are more effective methods for deterring crime than long-term imprisonment. So why not implement these other methods? For one, cultural attitudes toward punishment need to move beyond a racial mythos that supports more severe consequences for black and Latinx people. Attitudes shift policy. According to Mauer and Ellis “significant policy change” has occurred at the state level since 2000 because of outside pressure to reform. They note, “twenty-nine states have enacted some type of reform to their mandatory sentencing policies, and ten states have reduced their prison population by at least 15 percent.” These gains may not be enough to overhaul a system premised on social control, but they are indeed a sign that punishment in the 21st century is under scrutiny.

Mauer and Ellis ask in earnest, “At what point does punishment become barbaric?” This question is the premise for Alisa Roth’s findings in Insane: America’s Criminal Treatment of Mental Illness, an engrossing, unsettling account of how the US criminal justice system deals with mental illness. Her book is the culmination of meticulous research into the trenches of the criminal justice system, where those most in need of mental health services are also those most likely to end up incarcerated in jails and prisons. Most poignant and telling of the criminal justice system’s failures to mitigate mental illness are the several profiles that Roth includes of people caught within the harmful cycle of the system. Take Bryan Sanderson, a former firefighter, who suffers from manic depression and psychosis, which led him to make impromptu road trips across the country with little to no money. His illness cost him his home, his wife, and his mind. His first arrest over a misdemeanor for streaking in an elevator and ostensibly resisting his arrest spiraled into an unmitigated horror that has ended in his self-inflicted blindness. As Roth documents, Sanderson’s level of delusion and disorientation only escalated during his first interaction with the police, which led to countless other interactions with the criminal justice system. Roth writes about Sanderson’s first arrest:

When the deputies handcuffed him, he got terrified and angry. He tried to fight back, which made him seem unruly and dangerous. […] In both cases the offensive took his behavior as reason enough to treat him more harshly, treatment that in turn aggravated his response. […] For a person with symptoms of mental illness, it can be nearly impossible to obey the rules. To corrections officers trying to maintain order, though, that may come across as insubordination, not a response to fear or confusion: as the officers escalate their own response, the prisoner is simply less likely to do what he is told.

This scenario is familiar and the backstory to many police shootings.

To be mentally ill and without access to meaningful and consistent services for help — lacking in this nation — overwhelmingly means you will wind up in jail or dead, which was the case for 18-year-old Keith Vidal: shot dead by the police when all his mother wanted was for the police to help calm down her erratic and scared son. Most often when police come into contact with someone suffering bouts of psychosis, the situation gets worse, as Roth demonstrates with ample evidence. Edgar Coleman, a Minneapolis resident who once had a future as an NFL player and a career as a teacher, is one example among many. He was arrested 200 times between 1996 and 2012 and was often picked up for “marginal offenses.” Rather than helping, his stints of incarceration have made his “illness much worse.”

We as a society must develop alternatives that prevent the interaction between police and a severely mentally ill person that often leads to their imprisonment. This vicious cycle of incarceration and even death has everything to do with society’s disdain for and neglect of those with severe mental illness. With regards to the number of mentally ill people on death row, Roth concludes that this is “visceral proof of our ambivalence, or worse, our antipathy toward people with severe mental illness […] and it speaks to our culture’s collective fear we have of people with mental illness: they will somehow attack us personally.”

Rather than develop more effective and sustainable methods of treating the severely mentally ill, we have fallen toward severity and even barbarity. Roth writes extensively about her time observing mental health units in the Los Angeles County Jail, which has become a de facto psych ward with 25 percent of male prisoners needing mental health care and 40 percent of female prisoners. Roth rightly notes that “[j]ails and prisons are dehumanizing places.” This, after all her finely attuned research, seems an understatement.

Roth attempts to uncover a bit of hope, though, in an otherwise bleak system where effective mental health services are circumvented by the conditions of incarceration that lead to more violence, harmful conditions of solitary confinement, and overmedication. She writes about High Observation Units in jails that specifically separate and house prisoners dealing with severe mental illness, community mental health centers that try to intercept jail time, and diversion courts, which all attempt to recognize the challenges and differences posed by mental illness. This still is not enough to sustain the blow caused by a bloated, powerful, and violent prison system.

Roth, Mauer, and Ellis expose the excessive nature of punishment in the criminal justice system and how this cripples the most vulnerable in the United States. Even more significant, these books open a dialogue for including violent offenders in prison reform efforts. After all, it’s violent offenders who are languishing in prison for life. It’s violent offenders who are wiping feces on the walls in prisons, rejecting their meds, and are being locked up in solitary because of an untreated mental illness. This is an uncomfortable truth that prison reformers must account for in their attempts to improve a broken system where, more likely than not, a person is locked up for a violent offense. There will be no effective prison reform unless we confront and challenge a system that locks up violent offenders for far too long at an unseemly rate.

Notably, the current administration under Trump pushed for sentencing reform with the First Step Act, which reduces mandatory minimums and lowers sentencing (to 25 years) for nonviolent three strike offenders in federal prisons, a direct yet feeble backhand at former president Bill Clinton. This “first step” still does not address the issues at the core of Mauer, Ellis, and Roth’s pleas for reform, never mind the other harmful surveillance “reforms” the act proposes.

The prisoner accounts that Mauer, Ellis, and Roth tell lay bare the consequences of a system that illogically sees value and futurity in locking up generations of people for life. Both books propose compelling policy and alternatives to prison, and both move an important discourse on prison reform forward in a time when both sides of the political aisle are poised to act. Mauer and Ellis’s proposal for a 20-year sentence cap, thoroughly outlined and argued, and Roth’s impassioned plea to find new ways of treating people with mental illness do not fall on deaf ears as much as they remain suspended in an echo chamber. A system premised on the social control of poor people will not simply get better for those it targets, as time has proven.

But these books do add to a discourse of prison reform that we should not be ready to forfeit. As they demonstrate, for those of us who want meaningful change, it’s a matter of not capitulating to tired narratives that barter nonviolent offenses for a sliver of humanity in an inhumane system. For AG Bob Ferguson, a greater good might be “prison for life without the possibility of parole” over capital punishment, but this will continue to sink us further into the hell that we have made of prison. The perspective that capital punishment is inhumane whereas 200,000 prisoners in for life is a viable improvement is just as absurd as believing prison provides adequate mental health services. If anything, these books at least stridently remind us that change won’t come until we see all prisoners as humans.

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Sabrina Alli is a writer, activist, and educator living in Brooklyn, New York. Her work has been published in The New Inquiry and Guernica.