Toyed with and Discarded: The Inmate as Human in an Age of Mass Incarceration

By Jessica PishkoOctober 5, 2014

Mass Incarceration on Trial by Jonathan Simon

“MASS INCARCERATION,” as an article for the New York University School of Law’s Brennan Center for Justice recently pointed out, is a relatively new term used to describe a range of abuses within the American prison system. The phrase implies something both massive in scope and consequence, and it attends a series of connected social ills: racial and economic disparity, inmate rape, overuse of solitary confinement, and poor medical care, as well as high costs to taxpayers. But even further, the phrase “mass incarceration” means that incarceration in the United States is now viewed by some as a humanitarian catastrophe depriving inmates of even a shred of individual dignity. As has frequently been pointed out, the United States currently faces an unprecedented prison crisis: over two million people behind bars, the highest rate of incarceration in the world.

California provides a unique case study for mass incarceration. Not only has the California prison population grown stupendously over the last few decades — over 500 percent — California prisons were, at their height, 200 percent over capacity. Recent litigation has cast a long shadow: implementation of the Supreme Court order in Brown v. Plata to reduce prison population is still ongoing, and the California Department of Corrections and Rehabilitation (CDCR) also must work to comply with an ongoing court order in Coleman v. Brown to bring its medical treatment up to par. Recently, a group of inmates in the Pelican Bay Security Housing Unity (SHU) were permitted to bring a class action on behalf of all SHU inmates who have been held in solitary confinement for over 20 years; their arguments are based on the CDCR’s excessive use of SHU and the vague policies for getting out (known as the “step-down” program in CDCR parlance). The plaintiffs in this class action include the same individuals who were the leaders of the Pelican Bay hunger strikes last year, which grew to include 30,000 inmates who refused food to protest inhumane conditions in the SHU.

Professor Jonathan Simon’s new book Mass Incarceration on Trial describes the evolution of California’s prison system through today’s era of “mass incarceration,” which Simon defines as beginning in the 1970s and coming to fruition in recent years. Simon is a professor at Berkeley Law School who writes and teaches frequently on penal policy, combining both the jurisprudence and philosophy behind incarceration. This book represents a straightforward attempt to justify the scathing account of the state’s prison system set forth in the most recent court decision in California — Brown v. Plata, decided by the Supreme Court in 2001 — and to pave the way for lawyers and policy groups to make arguments that will end mass incarceration as a policy in America. While his intentions are noble and Simon’s indictment of the role of the CDCR is appropriately scathing, I wonder whether recent events will show that the Plata decision is as productive as Simon wants us to think.

Mass incarceration’s goal, according to Simon, is to totally incapacitate those who are found to be guilty of crimes by removing them from neighborhoods where the rest of the presumably law-abiding population resides. Most inmates, especially those who commit serial crimes, no matter how small, are seen in this system as “superpredators,” incapable of being rehabilitated. Supermax prisons were built with this in mind — basically they are human warehouses that limit contact between inmates and between prisons guards and inmates and generally do not provide for rehabilitative programming or other services. Simon points out that California’s prisons were intended to be overcrowded; they were built to hold more inmates than they should, as if in anticipation of the very crisis that occurred. (In support of this, I have been told by the CDCR myself that statistics claiming that prisons are “overcapacity” misunderstood the way prisons were built.) Supermax prisons, Simon says, assume a perpetual state of emergency where one could only expect violent and inhumane treatment. In sum, the book argues that mass incarceration is fundamentally incompatible with humane treatment.

Simon focuses on California’s overuse of SHU (which, along with “Ad-Seg” —Administrative Segregation — is more popularly known as “solitary confinement”) as a way to control its excessive population. He recalls California’s history of struggles with prison gangs, groups of inmates allied by race who supposedly still rule Pelican Bay and the supermax prisons that litter the Central Valley of California. The fear these gangs inspired was a direct cause of the overuse of supermax and SHU housing as a way to contain these “worst of the worst.” In fact, this very policy was a driving force behind last year’s hunger strikes and the current lawsuit brought by those held in SHU longer than 20 years. The CDCR doggedly maintains that the hunger strikes were examples of gang leaders manipulating the system, despite the fact that the leaders of the hunger strike were all affiliated with different gangs. The CDCR also implemented several changes in policy after the hunger strikes without admitting any fault.

In lieu of politics, Simon places his hope in the evolution of the Eighth Amendment, which nominally and vaguely protects citizens from “cruel and unusual punishment,” as a guardian of what he terms “human dignity.” He traces a line of court cases that could be used to rule against mass incarceration as a broader movement by using the Eighth Amendment.

These cases, culminating in Brown v. Plata, have all focused on problems with the delivery of health care within California’s overcrowded system. Madrid v. Gomez and Coleman v. Wilson both upheld the rights of mentally ill inmates. The federal district courts in these cases agreed that the Eighth Amendment requires that mentally ill inmates receive proper medical treatment and are protected from violent “extractions” (when inmates are forcibly removed from their cell by guards), solitary confinement, and extended periods of being shackled, sometimes outside, always in contorted positions (among other things). The high number of mentally ill within prison systems nationwide has been the focus of attention for some time (and still is). Mentally ill prisoners are routinely subjected to some of the worst treatment in prison mostly because they are vulnerable and subject to violence by guards (to subdue their erratic behavior), violence by other inmates, and longer and more frequent periods spent in isolation. Governor Brown only within the last month proposed changes to policies that permitted the use of pepper spray and isolation housing on mentally ill inmates.

In Brown v. Plata, which eventually made its way to the US Supreme Court, a federal three-judge panel put a population cap on California’s prison population, holding that the state had to reduce its population to 137 percent of capacity. At its height, California prisons were running around 200 percent capacity, leading to practices like triple-bunking and placing beds within common spaces not designed to be used for sleeping. (As an additional result of the decisions, the health care in California prisons was placed under a receivership, which means that the court monitors and makes recommendations for improvements.) According to the Plata decision, California prisons were so overcrowded as to constitute a violation of the Eighth Amendment themselves. It’s a rather amazing decision when you consider it — the conditions in California prisons were so terrible that they were “cruel and unusual” in and of themselves. This has proven to be a tough condemnation for the CDCR to overcome.

An interesting point Simon raises in his analysis is that Brown v. Plata breaks with tradition by considering the risks of release. Under the Prison Litigation Reform Act of 1996, a piece of legislation passed at the height of mass incarceration, the three-judge panel had to consider the risks of any policy that would release inmates into communities. Basically, California did not deny that its prisons were overcrowded, nor that delivery of health care was compromised as a result; instead the CDCR argued that allowing felons out of prison presented a risk to the public. The panel disagreed and found that any gains by the state were eliminated by the effect of such overcrowded prisons on those who lived in them. It then suggested various diversionary methods, most of which had been recommended, and discarded, by the CDCR in the prior decade.

Simon ultimately argues that American society is entering a new age of dignity-based policies, a “dignity cascade” in his words, based on the Supreme Court’s decision in Plata, where Justice Kennedy wrote for the majority, “Prisoners retain the essence of human dignity.” He traces Kennedy’s logic to other Supreme Court decisions that suggest that the Eighth Amendment should be read to protect “dignity” as an important individual right, albeit one not mentioned in the Constitution. (This is, of course, no real bar, since many well-established rights are not in the Constitution.) Dignity-based policies are an evolution that allows for a broader understanding of the Eighth Amendment, rather than relying on the civil rights arguments of the past. The 1972 Supreme Court case Furman v. Georgia first raised the idea of human dignity as a value worth protecting, something beyond physical sustenance, when it invalidated the death penalty as it existed in every state for being too broad. Justice Brennan wrote in his concurring opinion that the Cruel and Unusual Punishment Clause forbids punishments not just because they are painful but also because “they treat members of the human race as nonhumans, as objects to be toyed with and discarded.”

Dignity-based rulings would allow for invalidation of mass incarceration as a practice because it treats people as cogs in the machine. This is where Simon focuses his efforts — he wants his readers to believe that the problem with current incarceration practices is that they treat inmates as something subhuman, and that this can be stopped. He suggests that American courts look to European laws, which have long held that humans should be treated with dignity even if they have committed crimes.

Recent findings justify Simon’s optimism about California’s judicially enforced changes to its prison system. A recent report by The Sentencing Project praises the results of California’s “realignment” policies, which kick back responsibility for certain prison inmates to county jails or parole programs. Through realignment, California has reduced its state prison population by 23 percent since 2006 (although California is not yet in compliance with the Plata population guidelines set by the three-judge court order). At the same time, realignment has not produced any increase in crime. In fact, violent crime in California, as everywhere in the United States, is substantially down from 1990s levels.

There are some reasons to question whether litigation is the best way to change CDCR policies. Current trends indicate that the CDCR is unlikely to make any moves on its own, partially because of “tough on crime” politics and partially due to the influence of the politically powerful California Correctional Peace Officers Association, the union representing all state prison guards. Despite these political realities, there is some doubt as to litigation’s cost-efficiency. Cost-wise, litigation is slow and expensive — Coleman has been ongoing for over 24 years, with still no real resolution in sight. Simon points out that the CDCR often points to money spent on new facilities, rather than any change in attitudes that would result in better health care. Changing the minds of policy makers may be more expedient, although difficult, considering the interests of various groups, like the prison guards union.

To some, Simon’s arguments may be too optimistic. Recent CDCR statistics show that the state prison population has increased over the last year despite realignment, and the CDCR has spent even more money this year than the year before. And, on top of this, many county jails are now experiencing overcrowding. This will likely be solved with outsourcing the care and housing of inmates to private corporations, whose methods are dubious at best. Based on the current evidence, I find it hard to say that mass incarceration as a policy has truly ended, and the term might require some specificity as to how many people are required to make prison policies “mass.”

More broadly, the United States courts have been reluctant to adopt world logic behind punishment and incarceration. For example, America is the only Western nation to allow the death penalty, which seems in stark contrast to any “dignity” standard. (It should be noted that a district court in California recently held that the death penalty was unconstitutional due to excessive delays and “dysfunction” by the state.) It might be simpler to argue that the death penalty does not uphold dignity. Considering the latest botched Arizona execution, where Joseph Wood took over two hours to die and was injected 15 times, a dignity-based consideration of the Eighth Amendment would allow for the Supreme Court to require states to declare the provenance of their lethal drugs as well as uphold only those execution methods that are decidedly more dignified.

Simon’s argument is unique in that he sees mass incarceration as part of a broader problem, one he compares to the plight of refugees — the leaked pictures of the migrant children and the photos of the overcrowded California prisons look remarkably similar. We should be concerned about the larger mass of humanity, people who should be treated better than mass incarceration permits. It’s hard not to agree with Simon that the policies of mass incarceration — supermax prisons which limit human contact, overcrowded prisons that threaten the delivery of health care services, and casual attitudes toward brutality — are one of the greatest American human rights abuses in this century. Given the current state of its prisons — despite the fact that many cases challenging mass incarceration have succeeded, and many are still ongoing — California, along with most other states, still has a long way to go toward recognizing all inmates as individuals of inherent dignity.


Jessica Pishko writes frequently on incarceration and the justice system.

LARB Contributor

Jessica Pishko graduated with a JD from Harvard Law School and received an MFA from Columbia University. She writes frequently on incarceration and the justice system.


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