One measure of our humanity is how we treat the least among us. The future will judge us harshly, I am afraid. This is especially so regarding our prisons. We’ve taken a punitive turn in social philosophy, and have created penal colonies in our midst. What’s worse, we’ve fallen in love with these islands of hatred.
“How can you represent those people” I am sometimes asked.
Why this one is accused of murder; that one has been accused of selling narcotics; this one sexually abused a client; that one stole money or forged a document in connection with a financial transaction.
“Yes, I respond,” in each case. “Those are the allegations. For all I know, in some significant portion of cases the allegations may bear a passing resemblance to the shared sense of things we commonly call reality. But have you considered what becomes of the accused?”
Prison sentences measured in decades are not uncommon in the United States. Candidly, I’ve met few people among the hundreds I have represented who were such a threat to the settled order that a few years “away” would not have served the purposes of deterrence, punishment and rehabilitation — the traditional goals of punishment.
The truth is our criminal justice system is savage. It is easy to stand next to the accused and push back by any and all lawful means. A client accused of selling drugs is offered 13 years as a “bargain” if he pleads guilty; should he lose trial, the sentence is forecast to be 20 years or more. Immobilized by the a choice between two horrible worlds, it’s small wonder he opts for defiance and gambles on reasonable doubt. The wonder is that prosecutors can strut the well of a court with a clean conscience.
It’s not enough to rely on simple rhetorical gestures: “Don’t do the crime if you can’t do the time.” We define, endorse and adopt definitions of crime and of punishment. There is nothing inevitable about the sledgehammer we call justice.
Robert Ferguson’s new book, “Inferno: An Anatomy of American Punishment,” tells the tale of our love of systemic cruelty far better than I can. Drawing from literature, philosophy, law review articles and reported cases, Ferguson notes the following: As a society and culture, we take great pleasure in punishing others; penalties always seem to increase in severity; and, we remain willfully blind to the consequences of what we do.
Lest you doubt that punishment pleases, Ferguson, a Columbia University law professor, quotes no less an authority than St. Thomas Aquinas: “In order that the happiness of the saints may be more delightful to them and that they may render more copious thanks to God for it, they are allowed to see perfectly the sufferings of the damned.” Heaven, it turns out, is all the sweeter because the redeemed get to enjoy the sight of those who suffer.
There’s something sick and twisted about that logic, and Ferguson calls us on it, asking important questions about whether our penal policies, practices and institutions are in need of major reform. There is reason to hope, given the emerging and long-overdue debate about mass incarceration, that the time for prison and criminal justice reform has arrived.
Consider the pitiful spectacle of Joette Katz, a former public defender and former justice of the Connecticut Supreme Court. Here is a woman who began her career standing next to the accused. She was then elevated at an early age to the highest court in the state, where she became progressively more conservative, more transfixed by the metronome of institutional interests. Once her transformation into a woman without qualities was complete, she left the high court to become the Commissioner of the Department of Children and Family Services.
Just this week, she wrote in defense of transferring to a prison a juvenile convicted of no crime.The child in question is a transgender teenager. In other words, although she tumbled from womb a male, she yearns to be a female. Desire defines us and is a deep and abiding mystery. For reasons unknown, a tortured few desire to leap across the gender line, transforming themselves. It is a process difficult and often shattering to those who endure it.
Shockingly, Katz turned to the bully pulpit to malign her ward as little more than a dangerous animal who has bitten and assaulted caregivers. Forget the confidentiality the child enjoys. Keep her name secret, but justify the institutional imperative. Katz has the audacity to suggest the child has been imprisoned for her own good. Why, DCF social workers will visit her three times a week in prison, Katz writes. Is that a joke, Joette?
Lawyers for the young woman have challenged the decision to place the youth in a prison. Katz justifies it. There is nowhere else to place this troubled teen that can assure that those who care for her remain safe. Prison, for Katz, is now less a house of correction than a holding cell for the troubled. Katz now views prisons as both place of punishment and treatment: Her tired and lazy rhetoric is the new manifesto of a therapeutic state. (Confession: My perspective is no doubt colored by the fact that I have been asked to join the team of lawyers defending the interests of this teen.)
It’s not just the former justice who has lost her mind. We routinely use prisons to house folks suffering from addiction and mental illness. Prison has become a place in which we hide our failures to provide opportunity for all in a land of unprecedented wealth.
Friedrich Nietzsche got it right: “Thus do I counsel you, my friends, distrust all in whom the impulse to punish is powerful.” Distrust even more, I say, those who cannot tell a prison from a place to send a troubled youth. The rage to incarcerate is addictive. Joette Katz and her therapeutic playmates need treatment.